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1773, 

With a History of Governor Eden's Adminis- 
tration in Maryland. 

1769-1776. 

By ELIHU S. RILEY. 



baltimore: 

King Bros., State Printers, 

128 East Baltimore St. 

1903. 



THE LIBRARY OF 
CONGRESS, 


Two Copie» 


Reeeived 


MAR 16 


1903 


Copyright Entry 
CUASS C^^ Wo. No. 


^1 3' 

COPY 


0, > 



Copytighted in 1902 by 
ELIHU S. RILEY. 



c 



Francis O. White, Jr., Publisher, 
19 Slate Circle, Annapolis, Maryland. 



This Volume is inscribed, with affectionate 

esteem, iSy the author, to 

William Shepard Bryan, 

Formerly Associate Justice of the Court of 

Appeals of Maryland. 

A judge— learned in the law— just in the 

application of its principles; 

A man— chivalrous in spirit ; independent in 

thought ; brave in deed ; 

A friend— sincere and steadfast. 



PREFACE. 

It had been, for a number of years, tlie desire of the author 
of this book to rescue from the danger of destruction, by a 
multiplicity of copies, the one perfect series of letters of 
Charles Carroll, of Carrollton, and Daniel Dulany, on the 
question of the right of the Governor of Maryland to establish 
the fees of public officers without the consent of the Legislature. 
That one complete record is|found in the files of the Maryland 
Gazette, in the Maryland State Library, at Annapolis. The 
"Lower House," of Maryland, January Session, 1902, now 
known as the House of Delegates, the action of whose prede- 
cessors, in defence of their rights and the rights of the people, 
•developed in 1773 this correspondence, made practical ihe wish 
of the author to preserve to the citizens of Maryland and their 
posterity this remarkable discussion — it is cautiously "sub- 
mitted — the most celebrated of colonial times. Yet, this com- 
mendable work of the House of Delegates would not have been 
accomplished had it not been for the favorable consideration 
given the subject, and the valuable aid extended to the author, 
by a legion of endorsers of the movement, who aided him in 
bringing the matter to the attention of the House. 

While the author does not design to name them in numerical 
progression, in the order of their comparative assistance, yet 
he would be ungratefnl if he did not state that, of all those 
friends who encouraged his efforts, Mr. James P. Bannon, of 
Anne Arundel ; Delegate Robert W. Wells, of Prince George's ; 
Delegate John G. Rogers, of Howard, chairman of the Com- 
mittee on Ways and Means ; Delegates L. L. Bawsell, Peter J. 
Campbell and Isaac Lobe Straus, of Baltimore city, were at 



VI PREFACE. 

the forefront in their invaluable efforts to secure the favorable 
action of the House of Delegates upon the report to print. 

Amongst those who gave their approval of, and their assist- 
ance to, the effort to secure the publication of these letters 
were his Honor Chief Justice James McSherry, of the Court 
of Apj^eals, and Associate Justices James Alfred Pearce, A. 
Hunter Bojd and Henry Page, of the same distinguished 
bench.* The author is also indebted to the friendly offices of 
Senator Stevenson A. Williams, of Harford, who, in the session 
of 1900, offered a bill to print this correspondence, and gave 
the movement his approval. Senator Jacob L. Moses, of Bal- 
timore city, was, also, with Senator Williams, another earnest 
and intelligent supporter of the effort to print during the 
session of 1900. 

In the House of Delegates itself every one of the delegates 
who supported the report on its final vote w^ere ardent friends 
of the proposition, yet there were those among these who were 
pre-eminently earnest in their endeavors to secure favorable 
action on the part of the House, and whenever the reader 
experiences any gratification at the publication of this remark- 
able discussion, he should feel a corresponding sentiment of 
approval of those delegates for their valuable aid in making 
public these hidden records of the ability and courage of our 
Maryland ancestors. Those who so ably seconded the move- 
ment, were : Delegates L. L. Mattingly, of St. Mary's ; James 
R. Brashears, of Anne Arundel; Joseph Muir, of Somerset; 
Joshua Clayton, of Cecil ; and Patrick E. Finzel, of Garrett. 

The vote upon the report is appended to the order authoriz- 
ing the publication. It is confidently believed that, could the 
honest minority against the report have had that light upon 
the matter that the clouds of haste, which accompany so much 
of legislation in the expiring hours of a session, obscure, the 
author feels that the order to print would have had their sup- 
port as well as that of the sixty-four members who are 
recorded in favor of the report of the Committee on Ways and 
Means. The author is under obligations to Mr. William Meade 



PBEFACE. Vll 

HoUadaj, of Annapolis, for invaluable assistance in preparing 
for the vote upon the motion to reconsider and print. 

In re-printing the letters of First Citizen and Antilon, the 
originals, as they appeared in the 3Iarijland Gazette, have been 
followed exactly in orthography, capitalization, punctuation 
and italicization. The reading of the last proofs of the letters 
has been done by Mr. Louis H. Dielman, of the Maryland 
State Library, a gentleman who, besides being admirably 
equipped by his ability and experience for this work of 
arduous labor, threw into the friendly assistance that he cheer- 
fully gave the author, an ardor born of an earnest desire to 
have this correspondence issued to the public without fault or 
blemish. 

The printers of the volume have not only executed their 
letter press in admirable typography, but they have been, 
equally, with the others engaged in the publication of this 
work, earnest in their endeavor to have the book published 
free from mistakes. It was rare when the author's proofs 
contained any corrections that had escaped the vigilant eyes of 
the State Printers. 

Maryland has an honorable and illustrious history. The 
records of the deeds of valor and offices of distinguished state- 
manship that her sons have performed, are sometimes found 
enrolled on the pages of their country's written histories, but 
are more often hidden in the musty rolls of Maryland's well 
preserved archives. To bring these records to liglit for public 
inspection, the people of Maryland have not been swift. The 
times are ripe for the sons of Maryland to exalt her fame by 
rehearsing the proud deeds of their ancestors in every line of 
public and patriotic duty — on the forum, in the field, and upon 
the seas — where, for the distinguished ability, heroic courage, 
and invincible valor of her citizens, Maryland will not yield 
superiority to any State in this great Republic of States. 

Elihu S. Riley. 

Annapolis, Maryland, December 23, 1902. 



REPORT TO PRINT. 



Mr. Wells, of Prince George's county, by request, offered 
the following preamble and order : 

To the Members of the House of Delegates of Maryland, 
respectfully : — 

Whereas, The history of the administration of Governor 
Eden was honorable for the greatest and most prolonged 
struggle the Freemen of Maryland ever made for their rights 
in colonial times — a struggle which lasted three years in 
denial of the claim of the Governor to revive by proclamation 
Acts of Assembly that had expired by limitation — and a 
struggle which was second only in importance to the Revolu- 
tionary contest, and which controversy brought forth the cele- 
brated debate between Charles Carroll, of Carrollton, and 
Daniel Dulany, Jr., under the respective titles "First Citizen" 
and "Antilon ; " 

Whereas, These letters, remarkable for their learning, pro- 
found researches in the law, classic diction and patriotic 
sentiments of the sage of Carrollton ; and 

Whereas, The letters of Antilon now rest as they have for 
one hundred and twenty-nine years, existing only in the files 
of one newspaper, two copies remaining, Therefore, 

Okdered, That the State Printer, Edwin W. King, trading as 
King Bros., is hereby authorized and directed to furnish for 
the use of the House of Delegates four hundred copies of the 
Letters of "Antilon" and "First Citizen," the names respect- 
ively of Daniel Dulany, Jr., and Charles Can-oil, of Carrollton, 
including the Letters, and a history of Governor Eden's adminis- 
tration — 1769-1774 — probably the most remarkable of colonial 
times in Maryland, which above-named work is in preparation 



X REPOliT TO PRINT. 

by Elihu S. Riley, said 400 copies to be delivered to the Chair- 
man of the Committee on Printing of the House of Delegates, 
and sent to the State Librarian to be distributed as follows : 
50 copies to the State Library ; 242 copies to the members of 
the House and Senate, respectively, for distribution by them, 
that is, two copies each ; two copies to the Maryland Historical 
Society Library ; one copy to Johns Hopkins University ; one 
copy each to the following colleges: Maryland Agriculture, 
Western Maryland, Washington, St. John's, St. Mary's, Balti- 
more City College and Charlotte Hall ; and the remainder to 
the School Boards of Baltimore city and the several counties of 
the State, for the use of their libraries and scholars. And on 
the certificate of the Chairman of the House Committee on 
Printing to the State Comptroller, that the said four hundred 
copies have been delivered to the said Chairman of the House 
Committee on Printing, he, the Comptroller, shall issue his 
warrant to the State Treasurer to pay to the said Edwin W. 
King, trading as King Bros., State Printer, a sum not exceed- 
ing twelve hundred dollars for the publication and fifty dollars 
to the State Librarian to pay for postage and distribution of 
said books ; the said money to pay for said work and distribu- 
tion shall be paid by the Treasurer out of the money appro- 
priated by the Act of 1900 to pay for the printing of the 
January Session of 1902. 

The order was referred to the Printing Committee, which 
amended the order and referred the same to the Committee on 
Ways and Means On March 25tli the Committee on Ways 
and Means made a favorable report on the preamble and order, 
which report was rejected by a vote of 31 to 44. On March 
27th, Mr. Bawsell, of Baltimore city, moved a reconsideration 
of the vote by which the report was rejected, which motion 
was adopted. Whereupon, Mr. Bawsell moved that the report 
be adopted. Which motion was adopted by yeas and nays as 
follows : 

Affirmative — Messrs. Mattingly, Grason, Kendall, Leather- 
bury, Watts, Shipley, Brashears, Smoot, Everhart, Painter, 



REPORT TO PRINT. XI 

Slade, Myers, Callahan, Benson of Talbot, Dryden, Muir, 
Hackett, Shepherd, Baker, Steele, Cosden, Clayton, Brooke, 
Wells, Curley, Norman, Thomas, Onley, Dirickson, Merrill, 
Nicodemus, McComas, Proctor, Carroll, Goldsborough, Jeffer- 
son, Melis, Bawsell, Bumgarner, Johnson, Foutz, Beasley, 
Campbell, Straus, Hoffman, Godwin, Morgan, Henkel, Biggs, 
Charles, Newcomer, Johnston, Sellman, Williams, Rodinette^ 
Eilbeck, Drum, Fuss, Hoffacker, Rogers of Howard, Forsythe, 
White, Finzel, Ashby— 64. 

Negative — Messrs. Speaker, Simmons, Griffith, Smith, 
Mathias, Broening — 6.* 

*House Journal, page 1505. 



<^ 



CONTENTa 



PAGE 

Chapter 1. Arrival of Governor Eden in Maryland 1 

Chapter 2. Governor Eden Issues his Proclamation to Regulate 

and Continue the Fees of Public Officers 12 

Chapter 3. The Session of 1771 and the Prorogations of 1772 21 

Chapter 4. Two Gladiators 27 

Chapter 5. Dulany's First Letter appears in the Maryland Gazette. 31 

Chapter 6. First Citizen's First Letter 44 

Chapter 7. The Second Letter of Antilon 53 

Chapter 8. Second Letter of First Citizen 69 

Chapter 9, The Third Letter of Antilon 95 

Chapter 10. Third Letter of First Citizen 120 

Chapter 11. " Old Maryland Manners" 149 

Chapter 12. The Fourth Letter of Antilon 158 

Chapter 13. Fourth Letter of First Citizen 196 

Chapter 14. The Election 234 

Chapter 15. Revolution Follows Resistance to Usurpation 244 



CHAPTER 1. 

ARRIVAL OF GOVERNOR EDEN IN MARYLAND. 



1769. Its illustrious annals of virtue, courage and patri- 
otism is the most precious legacy of a State. The people of 
Maryland recount, with honorable pride, that it was that 
commonwealth, first in the history of the world, in which 
religious liberty was established by law, and where every 
citizen was given the right to worship God "according to the 
dictates of his own conscience, none daring to molest, or make 
him afraid ; " they tell their children, with patriotic enthusiasm, 
that the Province of Maryland furnished the first volunteers 
that reported, to General Washington on the field of battle at 
Boston, under the first call of Congress for United States 
troops, and it was the first Province to maintain, in the perfect- 
ness of complete actuality, in its own right and by its own 
individual hand, the principle that there could be no taxation 
of the Freemen of any of the American Colonies without the 
consent of those Freemen. The Legislature of Maryland, 
January Session, 1902, authorized and directed this later 
story of the courage and patriotism of our ancestors to be 
perpetuated. 

Kobert Eden, Governor of Maryland, was the chief factor in ■ 
the events that made it possible for Maryland to take this 
leading part in the assertion of the political rights of an 
American Colony. He was appointed Governor of the Province 
in 1769, succeeding the celebrated Horatio Sharpe. Eden 
was the last of the Proprietary Governors of Maryland. With 
his departure faded the twilight shadows of that social and 
colonial life that had made Annapolis unique in the annals of 
the British-American Provinces. Eden's administration was 
romantic in stirring historic adventure. It was under his 
hospitable roof that Washington was guest when at Annapolis, 



2 FIRST CITIZEN AND ANTILON. 

iind where the first American displayed that native dignity in 
conversation and broad liberality in opinion which so eminently 
distinguished his lofty character. Eden was still, in name, 
Governor Avhen Maryland formulated her faith in the new 
nation, and he saw, helpless to prevent, its people prepare for 
and enter the arena of Revolution. 

The strong and genial attributes of Eden were well suited 
to play their part in the approaching drama of political events 
in a city that had been the first in all the American Colonies 
to rise in arms and drive away by force, the King's Stamp 
Ofiicer, his vessel and stamps when the ship and oflicer had 
attempted to land at the City Dock in Annapolis City.* 

It was the lovely month of June when Governor Eden landed. 
At this season the picturesque scenery of Annapolis is particu- 
larly beautiful. On the fifth of the month the ship bearing 
Governor Eden, wife and family, arrived in the harbor. On 
coming to anchor the ship fired seven guns, which number was 
returned by the citizens. In the afternoon, when the Governor 
landed, he was met by all the members of the Governor's 
Council then in town, and a great number of citizens, the guns 
of the battery making the Severn resound with its salvos of 
welcome. On Tuesday morning, about ten o'clock, he went 
up to the council house, attended by his lordship's honorable 
council, where his commission was opened and published. 

The royal Governor was a gentleman, "easy of access, court- 
eous to all, and fascinating by his accomplishments," and so, 
too, ' Mr. "William Eddis found him, for when he arrived in 
Annapolis, September 3, 1769, to take the position of English 
Collector of Customs, and made his appearance before the 
Governor, he says : " My reception was ecpial to my warmest 
washes. The deportment of Governor Eden was open and 
friendly. He invited me to meet a part}^ at dinner, and I took 

* On or about September 20, ITOo, Zuchariah Hood, the Stamp Officer for 
Maryland, arrived with his stamps in Annapolis. His vessel -was met at 
the City Dock by an indignant multitude of citizens of Annapolis, and 
Hood prevented from landing and his vessel was driven away. Thomas 
McNier, a citizen of Annapolis, had his thigh broken in the contest. 



aOVERNOR EDEN S ADMINISTEATION. d 

leave till the appointed hour, with a heart replete with joy 
and gratitude. On my return to the Governor, he introduced 
me, in the most obliging terms, to several persons of the 
highest respectability in the province. He treated me with the 
utmost kindness and cordiality ; assured me of the strongest 
disposition to advance my future prosperity and gave an 
unlimited invitation to his hospitable table." 

Not only to the select circle of a private company of his 
intimate friends did the Governor dispense his generous hospi- 
tality, but when the little city appeared in all its splendor on 
the anniversary of the proprietary's birth, he " gave a grand 
entertainment on the occasion to a numerous party ; the com- 
pany brought with them every disposition to render each 
other happy; and the festivities concluded with cards, and 
dancing which engaged the attention of their respective votaries 
till an early hour." 

Although the Governor led in the festivities of the pro- 
vince, he was not unmindful of the weightier cares of State. 
Mr. Eddis, who spoke with the unction of a grateful heart and 
sanguine temperament, said of him : " He appears comjietent 
to the discharge of his important duty. Not only in the sum- 
mer, but during the extreme rigour of an American winter, it 
is his custom to rise early ; till the hour of dinner he devotes 
the whole of his time to provincial concerns ; the meanest 
individual obtains an easy and immediate access to his 23erson ; 
he investigates, with accuracy, the comjDlicated duties of his 
station ; and discovers, upon every occasion, alacrity in the 
dispatch of business ; and a perfect knowledge of the relative 
connections of the country." 

Not only was Governor Eden moved by motives of jDrinci- 
ple and personal welfare to promote the well-being of the pro- 
vince, but, being a brother-in-law of Lord Baltimore, his family 
interests urged him to make the commonwealth prosperous. 
He was not wanting in any public enterprise to further the 
happiness of the province. A patron of the drama, it was by 
his liberal examjjle, sufficient funds were raised to erect a 



4 FIRST CITIZEN AND ANTILON. 

theatre in Annapolis on a commodious plan. He was, beside, 
the friend of education, and through his exertions a seminary 
was established " which, as it will be conducted under excel- 
lent regulations, will shortly preclude the necessity of crossing 
the Atlantic for the completion of a classical and polite 
education." So wrote Eddis. 

Governor Eden presented, in his official capacity, the dual 
relationship of representative of the Proprietary of Maryland 
and the King of England and his Parliament; for, while the 
Governor was Lord Baltimore's regent in Maryland, the Pro- 
prietary himself was the tributary of the King of England and 
annually rendered his dues of two Indian arrow heads as the 
sign of his tutelary obligations and the Acts of Parliament, as 
far as they were applicable, had full force in the province of 
Maryland. This commonwealth was a welcome arena for any 
man who had political ambition. Made the capital of Mary- 
land in 1694, Annapolis had witnessed many a battle royal 
between the " Freemen of Maryland," the representative body 
of the people, as the Lower House was called, and the Governor 
and Upper House, appointed by the Proprietary, Lord Balti- 
more, and which reflected his policy and defended his interests. 
There was thus an endless cause of controversy between the 
Governor and his Council on the one hand, and the House of 
Delegates on the other. Proprietary interest had only to 
assert its privileges beyond the pale of its perogative when 
the gauntlet was accepted by the Freemen of Maryland, and 
never did they flinch from maintaining their rights, nor were 
they ever unsuccessful in preventing encroachments upon the 
liberties of the people of Maryland. The history of the col- 
onial House of Delegates of Maryland known, resjDectively, as 
"the Freemen of Maryland," "the Lower House," "the House 
of Delegates," and "the House of Burgesses," from its initial 
session in 1637 to its last, in 1774, is the recital of succession 
of patriotic and successful contests for the maintenance of the 
inalienable rights of the people of the province of Maryland. 

Guarding with the jealousy of freemen their natural rights 
and constitutional privileges, the people of Maryland still 



GOVERNOR EDENS ADMINISTRATION. & 

supported Lord Baltimore's government in all its just demands 
and rendered to the proprietary of the Province and the King 
of England, a loyal obeisance, probably more intense in its 
fealty to the British Sovereign than that felt by native born 
subjects themselves. Distance had increased their respect for 
King and Parliament. 

In Annapolis, the seat of Provincial government, centered 
all the interests, social and political, of the commonwealth of 
Maryland. "Ye antient capital," of the Province, at this 
period, 1769, v^^as the most famous, cultivated and dissipated 
city of the colonies. Settled in 1649, by a sturdy stock of 
Puritan refugees from Virginia, driven out by the churchmen 
of that colony for their religious beliefs, on this splendid 
material had been grafted, by successive emigrations, scions of 
the best blood of England; and when, in 1694, the capital of 
the Province was removed from St. Mary's to Annapolis, there 
came with it a coterie of settlers who soon formed a Court 
party with all the arts and refinements of European life and 
intrigues of political science, traditional usages and official 
position. It led its local festivities, and gave tone and zest to 
reciprocal hospitalities. The elegant homes of these gay and 
wealthy people, a dozen of which still remain in all their 
capacious proportions, show the comfort and luxury in which 
they lived. 

Here the Legislature met; here were held the sessions of 
the Provincial Court, the High Court of Chancery, and the 
Court of Appeals ; here were the residences of the Governor 
and his highest offices ; and here his Council convened. 
These brought together the best legal minds of the colony, and 
all those wlio sought place or pursued pleasure, and with 
King William's School, which for nearly a century had been 
shedding the benfit of liberal education upon the capital, 
created a commiinity of pre-eminent culture and superior 
refinement. Thus Annapolis became known, throughout the 
colonies, as "the Athens of America." In the decade preced- 
ing the Revolution, its life of fashion and frivolity, of culture 
and elegance had reached its height and development. Wealth 



6 FIRST CITIZEN AND ANTILON. 

gave leisure and promoted education; education and leisure 
created a longing for refined and dissipated pleasures. 

The presence of a large number of ofiicials, some of whom 
had come from " Merry England," and had imported with its 
pleasures, its refined follies, and with the native invention of the 
province, devised a lengthened repertoire of social amusements, 
while the emoluments of office and the dividends of successful 
trade and the proceeds of productive plantations provided the 
means to gratify the taste of these gay and cultured devotees 
of fashionable festivities. The theater flourished in its highest 
art ; the race-track blended excitement for the upper and lower 
strata of pleasure-seekers; the ball-room and its elegant and 
costly entertainments drew together a refined and beautiful 
company of women and learned and handsome men whose 
society was sought by the great Washington, who often came 
to Annapolis to enjoy the delights of an unending programme 
of rich and rare amusements. 

The only place in the province, nor was its peer to be found 
in any of the colonies, that ofiered worshipers at the shrine of 
Fashion the ojjportunity to gratify a refined and cultured 
desire for the highest social function, Annapolis had now 
become a rendezvous of a gay, learned and dissipated society. 
The very lack of better mental effort, the want of useful and 
energizing employment, begat a longing for these trivial pleas- 
ures, which they named "enjoyment," because it relieved 
"from the ennui of the moment by occupation." Thus the 
gayety, culture, cleverness and very intellect of the province, 
from numerous potential causes, were gathered here. Its 
lawyers came to the courts, the judges to the bench, the dele- 
gates to the house of burgesses, at Annapolis, and even the 
planters whose tobacco had brought them fine revenues jour- 
neyed to the capital to spend the winter. They built costly 
and elegant houses as their homes, and furnished them in a 
style corresponding to their elegance. 

The staple export — tobacco — brought back to the colony, in 
exchange, the luxuries of the foreign markets. Troops of 



GOVERNOK EDEN's ADMINISTKATION. 7 

slaves, as obedient as the captives of the Orient, supplied the 
house with perfect service. Lumbering equipages, or old and 
rickety stage-coaches, generally drawn by splendid horses, 
bore the colonists about the country, while in the city, the 
sedan chair, carried by lacquers in rich liveries, was the luxu- 
rious car of the queens of the house. These favored people sat 
on carved chairs, at curious tables, "amid piles of ancestral 
silverware, and drank punch out of vast, costly boAvls from 
Japan, or sipped Madeira a half century old." 

Three-fourths of the dwellings in the city gave evidence of 
the wealth and refinement of the people, wdiile the employ- 
ment of a French hair dresser, by one lady, at a thousand 
crowns a year, was l)nt an outcropping of that luxury which 
made it the home of a gay and haughty circle of giddy 
voluptuaries and social autocrats. Commerce flourished ; its 
merchants imported goods in ships from every sea, and its 
enterprising citizens made special eftbrt and offered great 
inducements for men of eveiy craft to settle in their midst. 

Nor was the element of evil wanting in this dwarfed model 
of a European capital. Youth, beauty, wealth and learning 
soon chastened the rigors of the primitive virtues of the 
settlers of the province into the refinements of continental 
manners. Yet these fascinating and dangerous attracti(ms, 
while they created a soft and luxurious coterie of mendicants 
at the feet of social autocracy, did not dominate its true and 
better character; for, thougli the fame of its festivities and 
the grace and beauty of her women who rivaled the charms 
and manners of the most polished and elegant women of the 
mother country, was bruited throughout the provinces, it was 
for its culture that the little city on the Severn was best known 
' in the thirteen colonies. 

Though it was true "her pleasures, like those of luxurious 
and pampered life in all ages, ministered neither to her happi- 
ness nor her purity," yet that manliness of character that the 
English chronicler of its life at this period had noticed, marked 
the bearing of the humblest of her people, and its citizens, at 



8 FIKST CITIZEN AND ANTILON. 

the first call of revolution, responded with the highest attributes 
of enlightened mankind and the loftiest aspirations of unal- 
loyed patriotism. 

This picture of Annapolis would want its best and brightest 
coloring, and the riglit to its title would be clouded,- if it was 
unwritten that, in this city of pleasure, of legislatures, of 
courts, of proud men, were the best lawyers of America — the 
Jenningses, Carrolls, Chalmers, Rogers, Hall, the Dulanys, the 
Chases and the Johnsons, for almost all of them went in pairs, 
with father and son at the bar together. Dulany, with his 
opinions courted by the bench to aid them in elucidating the 
law, and requested even from the great metropolis of Loudon, 
dominated them all. From the lawyers sprang the real fame 
of Annapolis. It was gay, but it halted in its gayety the 
moment the call for earnest work was made. It was learned — 
it rose in sacrifice from steep to steep, as the keynote of 
patriotism sounded for greater and more dangerous enter- 
prises. At every advance the lawyers were in tlie forefront; 
they were on the outposts to give warning of danger ; their 
clarion tones were heard calling to battle ; they led the conflict. 

It was to such a community and in such a city, quick to 
hear, nervous in thought, cultivated in the highest culture of 
the colonies, jealous of its rights, used to struggles with the 
wilderness and their autocratic rulers, tliat the lawyers of 
Maryland, of Annapolis — for there, they were gathered — spoke. 
It is not surprising that these profound polemics in which the 
lawyers of Maryland engaged produced results that tingled in 
the very veins of their hearers, and, as they were talked in the 
ballroom, at the theater, on the race track, at the club house, 
in the legislature, in their homes, and reverberated in the 
courts, sent contagious sentiments throughout the American 
provinces. 

There were giants in those days. Towering above his fel- 
lows, in intellectual ability, profound legal learning and pro- 
fessional success stood Daniel Dulany, of Daniel.* 

*Bench aud Bar of Maryland, page 163. 



GOVEKNOK EDEN S ADMINISTRATION. \) 

Maryland itself was the reflex of England. Indeed, so 
closely have the first settlers of this illustrious commonwealth 
clung to the spirit and principles of their English forefathers 
that it has been confidently asserted that the people of St. 
Mary's county, the seat of the settlement of Lord Baltimore's 
first colony in Maryland, to-day, after the lapse of nearly three 
centuries, are more like the people of England at the date of 
the settlement of St. Mary's than are the English people them- 
selves. No branch of the history of Maryland, more than the 
records of the courts, reflects so distinctly the life and character 
of the people who settled the "Land of the Sanctuary." 
Here are the motives that animated the fathers who planted 
the cross on the shores of Maryland and reclaimed the wilder- 
ness to civilization. Their cares, their pleasures, their aims, 
their possessions, their provisions for their families, their 
deeds of valor, their petty disputes, their great endeavors — all 
stand out in the records of the courts, as true and faithful 
indices of character and conditions ; for here the report and 
the tradition were silted b}' tlie rules of critical proof and legal 
evidence, and the record was made by unprejudiced scribes, 
before a scrutinizing court, in the presence of adverse interests, 
zealous and watchful, to have the docket state the truth only. 

The helpful, busy, worthy life of the Maryland settlers, as 
seen through the telescope of judicial records, displays the 
colony as the bustling young model of the mother county from 
which it sprang. Here was the court pypowdry of the great cities 
of Liverpool and London ; here, the court peers and barons 
that reflected the picturesque tribunals of the lordly barons of 
the Isle of Liberty ; here was the county court mirroring the 
busy courts uisi of York and Devonshire ; the provincial court ; 
the shadow of the high court of chancery of England ; and 
then the appeal to the legislature, as the English suitor came, 
as the court of last resort, to the House of Lords. Here was 
my lord, "Sir Thomas Gerrard," "mj lady of the manor;" 
the steward of the manor ; the seizin by the rod ; the stock ; 
the ducking stool ; the whipping post ; the governor of the 
provice as the high chancellor of the state ; the sovereign lord 



10 FIRST CITIZEN AND ANTILON. 

proprietary; "his highness lord protector;" our sovereign 
lord the king ; the trial by jury ; the writs of right and arrest ; 
the Bible of the Englishman — found returned in almost every 
inventory ; the right to have and possess arms ; the voice of 
the freemen in assembly ; his right to levy his own taxes and 
make his own laws ; his duty to quiet his own estate before he 
died ; his jealously of his reputation ; his fearlessness in battle ; 
his superiority over trials and enviromnents ; his ability to 
adapt himself to every condition ; his respect for women ; his 
love of the chase ; his desire to acquire property ; his worship 
of God ; his veneration for law and love of order ; his penchant 
for trade and adventure ; his merry-making ; his love of strong 
drink, and hatred of drunkenness ; the effort of Lord Baltimore 
to establish in his lords manors a hereditary aristocracy ; the 
military spirit of the freemen; their oaths, pardons, acts of 
oblivion, seditions and insurrections ; the names of the people, 
towns, rivers, counties and province ; all reflect the land from 
which these sturdy pilgrims came, and who lit up the horizon of 
national hope w4th a fresh beam from the torch of liberty — the 
iTnfcttered right to worship God in that way which to them 
seemed right.'"' 

If the people of Mar3'land were similar in their tastes, 
habits and occupations, to the native born Englishmen, like 
them, the inhabitants of the Land of Mary were none the less 
of the same heroic mould in prizing their liberties and in 
resisting every attempt to encroach upon their sacred rights. 
They loved the people of England and in common with all the 
American colonies previous to the passage of the first Stamp 
Act in 1765, held that they possessed no greater' privilege 
than to be subjects and citizens of the British Empire, entitled 
to the same rights and proud of the same history that the 
native born Englishmen themselves enjoyed. 

At the time Governor Eden arrived in Annapolis all the 
American colonies were stirred to their profoundest depths of 
patriotic concern and resentful indignation over the passage of 
the second Stamp Act. Associations were being formed in 

*Bench and Bar of Maryland, page 60. 



GO"VEKNOR EDEN's ADMINISTRATION. 11 

various parts of the colonies for the non-importation of British 
goods — associations to last as long as the Stamp Act remained 
unrepealed. The kindly and fraternal feeling that had existed 
between the American people and the British Empire, had 
been deeply wounded, and it was no longer a mark of distinc- 
tion in America to be a native born Englishman as Dr. Benja- 
min Franklin told the Committee of Parliament in 1766 
existed in America previous to the passage of the first Stamp 
Act. 

Fifteen days after his arrival on June 20th, Governor Eden 
saw the first public exhibiton of the spirit of the people over 
whom he was set as Governor and of their sentiments upon 
this second attempt to infringe their rights as British-American 
citizens. On that date committees from the several counties 
of the province met in Annapolis to form an association for 
the "Non-importation of British Superfluities in this Province." 
Previous to this several organizations to effect the same pur- 
poses, existed in Annapolis and several of the counties. The 
Provincial association, after enumerating the various articles 
that its members agreed not to import, amongst them one very 
dear to the aj)petites of the average Marylander of that period 
— wines — also resolved that no ewe lamb should henceforth be 
killed. The spirit of the Father of American industry, Daniel 
Dulany, of Daniel, who in his " Consideration " against the 
Stamp Act in 1766, proposed an outline of the first system of 
American manufactures, was working. Maryland was now to 
do its part in furnishing wool for the teeming looms of the 
industrial future of America. 

At the conclusion of the resolutions of the Provincial asso- 
ciation, it was resolved, that if " any person or persons wliatevtr 
shall oppose or contravene the above Resolutions or act in 
Opposition to the true Spirit and Design thereof, we will 
consider him, or them, as Enemies to the Liberties of America 
and treat them on all Occasions with the Contempt they 
deserve." 

Governor Eden had well taken heed to this initial proof of 
the mind that animated the people of Maryland. 



12 FIIIST CITIZEN AND ANTILON. 



CHAPTER 2. 

GOVERNOR EDEN ISSUES HIS PROCLAMATION TO 

REGULATE AND CONTINUE THE FEES OF 

PUBLIC OFFICERS. 



1770. The Proprietary Government of Maryland had not 
been an unmixed blessing to the people of that Province. Lord 
Baltimore and his successors had been instrumental in settling 
the colony with members of some of the best families of 
England; the religious freedom of a colony had accentuated 
the love of liberty amongst the people and the substantial 
justice rendered each individual in his personal rights, vi^ith 
the products of the soil, the industry of the people and the 
commerce of the merchants, had created a hardy, intelligent 
and prosperous colony. Yet, from the first settlement of the 
colony, the Freemen of Maryland had constant battle with the 
Proprietar}^ and his representatives to maintain their rights 
and privileges. At the first lawful assembly, the Legislature 
of Maryland, the Upper and Lower House sitting as one body, 
wrung from the unwilling Proprietary the right to initiate 
Acts of Assembly. He had contended that he alone had the 
power to propose laws for the government of the colony, and 
had maintained that the only prerogative of the General Assem- 
bly was to assent to, or dissent from, that enactment into statutes. 
So the Freemen of Maryland were inured to the hardships of 
fateful co]itroversies Avith the craftiness of Government ofiicials. 
So, when the Stamp Act was passed, Maryland was aroused to 
the highest state of opposition to its provisions. In review- 
ing the history of this opposition and the maintenance of the 
principle that there could be no taxation of the American 
colonies without their consent, McMahon, in his historical 
view of the government of Maryland, page 329, says : "There 
is then but little room for rivalry, in contending for the honor 



GOVERNOR EDEN's ADMINISTRATION. 13 

of originating or sustaining this principle ; but if there were, 
there is no colony to which Maryland would yield the palm. 
The taxation of the crown was excluded, both by the express 
words of her charter, and the uninterrupted practice of the 
colony, from the very period of colonization. The taxing 
power, as granted by the charter, could be exercised ' only by 
the advice and assent of the freemen, or a majority of them ; ' 
and that every possible safeguard might be thrown around this 
right, it was expressly declared by the law of the province, in 
1650: 'That no subsidies, aids, customs, taxes, or imposi- 
tions, shall be laid, assessed, levied, or imjDosed, upon the 
freemen of the province, or their merchandise, goods or 
chattels, without the consent of the freemen, their deputies, 
or a majority of them, first had and declared in a General 
Assembl}^ of the Province. 

The second Stamp Act, passed July 2, 1767, and repealed 
April 12, 1770, still retained the duty on tea as a whip over 
the heads of Americans to remind them of their vassalage to 
England, and to warn them that their liberties were yet threat- 
ened by the King and Parliament of England. The people of 
Maryland, throughout the counties, were desirous so long as 
one vestige of the assertion of the right to tax Americans 
without their consent remained on the statute books of England 
to continue the association for the non-importation of British 
goods ; but the cupidity of the merchants of Baltimore, follow- 
ing the example of their mercantile brethren in New York, 
Philadelphia and Boston, who had already abandoned the non- 
importation articles, brought about internal dissensions, which 
in the fall of 1770, led to abandonment of the principles of 
non-importation. 

While there came a temporary lull throughout the colonies, 
generally, in the battle for the cause of no taxation without 
representation, Maryland was about to begin a contest single- 
handed and alone for this vital principle of constitutional 
government. 



14 FIRST CITIZEN AND ANTILON. 

"Ill their resistance to the impositions of Parliament," says 
Mr. McMahon, jiage 880: "The people of Maryland had 
hitherto been struggling for the preservation of an abstract 
principle of liberty, in opposition to their immediate wants 
and interests. The quantum of these impositions liad not 
even been considered, and they were too limited, both as to 
their direct objects and their amount, to have produced actual 
distress by their mere operation. Their oppression consisted, 
not in the payment of the tax, but in the assertion and estab- 
lishment of the parliamentary right of taxation. This was 
one of the remarkable features of that controversy, evincing, 
more than any other, the general prevalence of rational liberty, 
and the sagacity of the American people in guarding its out- 
posts. Men must be thoroughly imbued with principles, 
familiar with their operation, and endowed with intelligence 
to estimate the danger of remote encroachments upon them, 
liefore they will enter into a contest for them, prompted by no 
actual suffering. Other nations have risen, in the agony of 
distress, to shake off oppression ; the American people stood 
erect and vigilant, to repel its approach. The internal admin- 
istration of Maryland now brought up a controversy, in which 
its people were to renew their combat for the principle they 
had been sustaining against England, under circumstances 
brinoino- it nearer to their immediate interests. The advances 
upon their rights, now came in the shape of actual oppression, 
extending its operation to every citizen. This controversy 
related to what were familiarly called 'the jiroclamation and 
the vestry act questions.' From this period until the com- 
mencement of the revolution, all other subjects gave place 
to these engrossing topics. They elicited more feeling, and 
greater displays of talent and research, than any other ques- 
tion of internal polity, which had ever agitated the colony." 

It has been remarked, that " the General Assembly of Mary- 
land at all times retained its control over the offiers of the 
province by its right to regulate their compensation for official 
services : and that the fees of office were not only fixed by law, 
but also determined by temporary acts of short duration, upon 



GOVERNOR EDEN's ADMINISTRATION. 15 

the expiration of which the Assembly eoukl Avithhold or reduce 
them at pleasure. One of these acts, passed in the jeav 1763, 
had been continued, from time to time, until October, 1770 : 
and was again renewed at the session of 1770. The system of 
official compensation established by that act, was that which 
had been used in tlie colony from a yerj early period. There 
were no salaries ; but the officers were allowed definite fees for 
each act, or service. These fees, as well as the public dues 
and the taxes for the support of the established clergy, were 
sent out each year to the sherifts of the counties for collection. 
A particular period in every year was assigned, within which 
the lists of fees were to he delivered to the sheriff, and by him 
to the party charged for voluntary payment. If that period 
was sufiered to elapse, the sherifl' w^as required to levy by 
process of execution, and to account for them to the officers 
within another fixed period. Such were the general features 
of this system of collection, which we wdll have occasion to 
examine more thoroughly hereafter. To the details of the act 
of 1763, now coming up for re-enactment, many objections 
were made by the lower house : but so far as they related to 
the essential parts of the controversy about officers' fees alone, 
they consisted in the exorbitance of the fees connected with 
some of the principal offices, the abuses to the mode of charg- 
ing, and the want of a proper system of commutation." The 
principal complaints about the exorbitance of the fees, related 
t6 those of the provincial secretary', the commissary general, 
and the judges of the land office, and from the reports of that 
period, which enable us to determine the average annual 
receipts of those offices for several years previous, these com- 
plaints appear to have been justly founded. Bj- a number of 
our citizens, the fees and salaries of the state offices, at a 
late period were considered excessive. Yet there was no 
office in the Province whose emoluments can be considered 
equal to those of any one of the above-mentioned offices, 
during the pendency of this controversy. The receipts of the 
secretary's office, for the seven successive years, from 1763 to 
1769 inclusive, were 1,562,862 lbs. of tobacco : and the average 



16 FIRST CITIZEN AND ANTILON. 

annual receipts 223,266 lbs. of tobacco. The annual average 
value of his fees in the Chancer j Court during the same period 
was 39,326 lbs. of tobacco. His annual receipts from these 
two sources were therefore 262,592 lbs. of tobacco ; or, accord- 
ing to the rate of commutation at that day, 4,376 dollars. 
The fees of the land office, during the same period, yielded 
2,850,934 lbs. of tobacco, or annually, on an average, 407,276 
lbs. or 6,876 dollars; and those of the commissary's office, 
annually, 235,428 lbs. of tobacco, or 3,923 dollars. The 
alleged abuses arose principally from a practice, not peculiar 
to that day, of dividing the one service into several other 
enumerated services, with a view to the several fees. The 
commutation privilege of the act of 1763, was objected, as not 
sufficiently extensive. Tobacco was still the currency of the 
province. Officers' fees, and all public dues, were rated in it : 
and the right to pay these in tobacco, was, at first, considered 
a hio^h privilege. To avoid the fluctuations in value, to which 
such a currency was necessarily subject, it obtained by law, a 
fixed specie value ; and in certain cases, the specie was made 
receivable, in lieu of it, at the rate so fixed. The right to pay 
in specie, the Lower House desired to extend to all persons 
within the period allowed for voluntary payment. Although 
several of the propositions, growing out of these objections, 
were at first resisted by the Upper House, it seems probable 
from the tenor of its messages, that it would ultimately have 
yielded to all but that to reduce the fees. Here, however, was 
a source of uncompromising disagreement between the two 
houses. 

The opposition in the Upper House unfortunately for it, 
was led by those members of that body who were directly 
interested against the reduction of fees. Daniel Dulany, of 
Daniel, was the provincial secretary ; Walter Dulany, the com- 
missary general ; Benedict Calvert, and George Steuart, were 
judges and registers of the land office. These four were all 
councillors for the Governor and by virtue of that office, were 
members of the Upper House. Their opposition was, there- 
fore believed to be a. support of their own private interests as 



GOVERNOR EDEN's ADMINISTRATION. 17 

against the public good. All efforts to harmonize differences 
between the two houses, failed. After many bitter discus- 
sions, Governor Eden finalh^ prorogued the Assembly, and the 
province was left without any regulation of the fees of public 
officers and, also, without any public system for the inspection 
of tobacco. 

Governor Eden resolved to take upon himself, under the pro- 
rogatives of his office, the regulation of public fees, and for 
that purpose, issued on the 26tli of November, 1770, this 
proclamation : 

/ A Proclamation. 

" Being desirous to prevent any Oppression and Extortion 
from being committed under Colour of Office by any of the 
Officers and Ministers of this Province and every of them their 
Duputies or Substitutes in exacting unwarrantable and exces- 
sive Fees from the Good People thereof I have thought it fit 
with the Advice of his Lordship's Council of State to issue 
this my Proclamation and do thereon hereby order and Direct 
that from and after the Publication hereof no Officer or Offi- 
cers (the Judges of the Land Office excepted who are subject 
to other regulations to them given in charge) their Deputies or 
Substitutes by Reason or Colour of his or their Office or Offi- 
ces have, receive, demand or take of any person or persons 
directly or indirectly any other or greater Fees than by an 
Act of Assembly of this Province entitled " An Act for Amend- 
ing the Staple of Tobacco for preventing Frauds in his 
Majesty's Customs and for the Limitation of Officer's fees " 
made and passed at a Session of Assembly began and held at 
the Citj^ of Annapolis on Tuesday the Fourth Day of October 
Seventeen Hundred and sixty three " were limited and allowed " 
or take and receive of any person or Persons an immediate 
Payment in Case Payment shall be made in Money any larger 
Forfeit after the Rate of twelve Shillings and six Pence Com- 
mission Current Money for One Hundred Pounds of Tobacco 
under the pain of my Displeasure. And to the intent that all 
persons concerned may have due Notice thereof I do strictly 



18 FIRST CITIZEN AND ANTILON. 

charge aud require the Sheriff of the City of Auuapolis to 

make this m}^ proclamation publick in the said City as he 

will answer the contrary at his Peril. Given at the City of 

Annapolis this 2Gth Day of November in the twentieth Year 

of His Lordship's Dominion Anno Domino 1770. 

Signed l)y Order 

II. Scott, 

. Ch. Clerk." 

Egbert Eden. J The Great Seal. - 



It will be thus seen that the avowed object was to prevent 
abuses and extortions on the part of public officers. Its real 
purpose — to lay a tax in the nature of public fees upon the 
freemen of Maryland Avithout their consent — was too apparent 
to deceive even its OAvn friends. The time of issuing was 
most iinfortunate for the Governor and his supporters. Never 
w^as a public measure more unadvised. Although this prero- 
gative had been exercised by former Governors, it had never 
received the united approval of the people of Marjdand. 
Aroused, as the people were over the Stamp Act of Parliament 
and bending under the heavy burden of excessive fees, and 
determined to defend their liberties to the utmost limit of 
their constitutional powers, the proclamation fell as a fire 
brand in tinder amongst the people of Maryland. The weight 
of early precedent was against the Governor's proclamation. 
Public sentiment was almost entirely op})Osed to it, and, "in 
the general opinion, there was no chaiter power under which 
it could be sheltered. In the present instance, it defeated 
all the purposes of the Lower House, by adopting the same 
system which they had refused to sanction. It was, therefore, 
in general estimation, a measure of arbitrary prerogative, 
usurping the very right of taxation which the colony had been 
so long defending against the usurpations of Parliament. If 
the Governor had doubted about the reception of such a 
measure, there was enough to warn him, in some of the trans- 
actions of the Assembly, immediately before its adjournment. 
Whilst the fee bill was under discussion, and after the law of 



GOVEIINOK EDEN's ADMINISTRATION. 19 

1763 had expired, the judges of the land office, treating that 
office as the private institution of the proprietary, instructed 
their clerk to charge and secure the fees agreeably to the pro- 
visions of the expired law. A case, in which these instruc- 
tions were followed, was at once brought to the notice of the 
Lower House ; by whose order, the clerk was taken into custody 
and committed to prison. To effect his release, the Governor 
prorogued the Assembly for a few days. This interference 
elicited from the Lower House, upon its re-assemblage, an 
angry remonstrance, containing an expression of public senti- 
ment not to be misunderstood. ' The proprietor, (they remark), 
has no right, either by himself, or with the advice of his coun- 
cil, to establish or regulate the fees of office ; and could we 
persuade ourselves, that you could possibly entertain a different 
opinion, we should be bold to tell your excellency, that the 
people of this province ever will oppose the usurpation of such 
right.' In venturing upon such a power, after such an admoni- 
tion, the Governor therefore sinned against light and knowl- 
edge : and his measure shared the usual fate of those which 
set at naught the opinions, and sport with the liberties of a 
free and intelligent people." 

The members of the Lower House of the General Assembly 
of Maryland which convened on Tuesday the 25th day of 
September, 1770, were as follows : 

St. Mary's County, John Eden, William Thomas ; Kent, 
Thomas Ringgold, Stephen Bordley, Richard Graham ; Anne 
Arundel County, Samuel Chase, Brice Thomas, Beale Worth- 
ington, Thomas Johnson, Jr., Henry Griffith ; Calvert County, 
Benjamin Marshall 4th, Edward Gantt, Young Parran, Charles 
Graham ; Charles, Francis Ware, Joseph Hanson Harrison ; 
Somerset, Levin Gale ; Talbot, John Goldsborough, Matthew 
Tilghman, Nicholas Thomas ; Dorchester, Henry Hooper, 
Henry Steele, Edward Mace ; Cecil, William Ward ; City of 
Annapolis, John Hall, William Paca ; Prince George's, Robert 
Tyler, Mordecai Jacob ; W^orcester, Joseph Dashiell ; Fred- 
erick, William Luckett. 



20 FIKST CITIZEN AND ANTILON. 

A direct test vote of the strength of the two parties for and 
against the government is not to be found in the proceedings 
of the Lower House of 1770, but on a question, "that leave 
be given to bring in a bill, entitled An Act to continue the Act, 
entitled an Act for amending the Staple of Tobacco for pre- 
venting Frauds in his Majesty's Customs, and for the limita- 
tion of Officers' Fees, and the Supplementary Act thereto. 
The motion was put, Whether That Question be not put ? " 

"Resolved, That, The Question be now put." 
The vote was — 

For putting the Question — Messrs. Gantt, Grahame, Hay- 
ward, Gale, Dickenson, Goldsborough, Sullivane, Hooper, 
Steele, Hall, E. Tilghman, Hollyday, Allen, Selby, Purnell, 
Wilson, J. Dashiell, M. Tilghman, N. T. Thomas, Veazey, 
Ware— 21 

Against putting the Question — Messrs. Eden, Ringgold, 
Bordley, ' Graham, Worthington, Johnson, Griffith, Chase, 
Ward, Harrington, Beall, Tyler, Luckett — 13. 

The thirteen votes, apparently, represent the element radi- 
cally opposed to all compromise with the Governor on the 
question of fees, resolved to let the whole matter fall into 
greater confusion than that which existed, and thus make the 
situation, by its legislative chaos, nearer solution in favor of 
a reduction. 



GOVERNOK EDEN's ADMINISTRATION. 21 



CHAPTER 3. 

THE SESSION OF 1771 AND PROROGATIONS OF 1772. 



1771-1772. The members who composed the Lower House 
of the Assembly of October Session of 1770 were : St. Mary's, 
John Eden,William Thomas ; Kent, Thomas Ringgold, Stephen 
Bordley, Richard Graham ; Anne Arundel, Samuel Chase, Brice 
Thomas, Beale Worthington, Thomas Jenifer, Jr., Henry 
Griffith ; Calvert, Benjamin Mackall 4th., Edmund Gantt, 
Young Parran, Charles Graham ; Charles, Francis Ware, Joseph 
Hanson Harrison ; Somerset, Levin Gale ; Talbot, John Golds- 
borough, Matthew Tilghman, Nicholas Thomas ; Dorchester, 
Henry Hooper, Henry Steele, Edmund Nace ; Cecil, William 
Ward ; City of Annapolis, John Hall, William Paca ; Prince 
George's, Robert Tyler, Mordacai Jacob ; Queen Anne's, Edward 
Tilghman, Thomas Wright ; Worcester, Joseph Dashiell ; 
Frederick, William Luckett. 

Three days after the Assembly met the Lower House 
appointed a committee for the purpose of bringing in a bill 
"for amending the staple of tobacco, for preventing frauds in 
His Majesty's customs and for the limitation of officer's fees." 
This is the bill on which the whole controversy centered. 
October 13th the committee reported a bill which made a con- 
siderable reduction in the fees of some of the Provincial 
officers and allowed a compensation in money in all cases, and, 
on October 17th, the Lower House passed it and it was sent 
to the Upper House. After five days that body returned the 
bill and refused to concur in the changes in the existing law. 
This precipitated the issue. The Lower House passed resolu- 
tions reaffirming the action of that same body in a similar 
dispute in the years 1733, 1735 and 1739, and declaring that 
*'the Representatives of the Freemen of the Colonies have the 



22 FIRST CITIZEN AND ANTILON. 

sole right to establish fees of officers, and fees charged by the 
Lord Proprietary are arbitrary, unconstitutional and oppres- 
sive." The relations between Governor and Lower House 
were still further strained by the event referred to before which 
took place on November the first — the arrest and confinement 
in jail of William Steuart, clerk of the Land Office. He had 
presumed to transact the business of the Land Office as if the 
former Act was still in force. For this ofi'ense the Lower 
House, acting as the grand inquest of the Province, ordered 
his arrest, and directed that he be confined during the session 
of that body. Governor Eden, we have seen, prorogued the 
legislature for three days, which efiected Steuart's release. 

Then folloAved some fruitless efibrts on the part of the two 
Houses to reach common ground on the matter of the regula- 
tion of fees, and, on November 26, Governor Eden, after 
finding compromise impossible, finally prorogued the General 
Assembly. 

Then followed the i)roclamation noted in the preceding 
chapter. 

The Legislature for the session of 1771 met on October 2d. 
The Lower House was constituted as follows : 

St. Mary's County, John Reeder, Jr., William Thomas, 
Jeremiah Jordan ; Anne Arundel, Brice Thomas, Beale Worth- 
ington, Thomas Johnson, Jr., Samuel Chase ; Calvert, Benjamin 
Marshall 4tli, Young Parran, John Weems ; Charles, Joseph 
Hanson Harrison, Josias Hawkins ; Dorchester, William Rich- 
ardson, William Edmonds, Joseph Richardson ; Baltimore, 
Samuel Owings, Jr., John Moale, George Risteau, Thomas 
Cockey Deye ; Cecil, John Veazey, Benjamin Rumsey, William 
Baxter ; Prince George's, Josiah Beall, Robert Tyler, Thomas 
Contee ; City of Annapolis, William Paca ; Talbot, James 
Lloyd Chamberlain, Matthias Tilghman, Nicholas Thomas, 
Edward Lloyd ; Queen Anne's, Edward Tilghman, Richard 
Tilghman Earle ; Worcester, Nathaniel Holland ; Frederick, 
» William Luckett, Jonathan Hager, Thomas Sprigg Wooten,. 
Charles Beatty. The address in which Governor Eden opened 



GOVERNOR EDEN's ADMINISTRATION. '23 

the session contained no reference to the bone of contention, 
there being no word in regard to either his proclamation or 
the inspection law. The Lower Honse, however, was not 
willing to let the matter rest here. If that had been done, 
public officials would have gone on deriving their incomes 
under the proclamation, and Governor Eden would have won 
his point against the people's right as understood by the 
Lower House. The opinion of that body was indicated on 
October 10th, when the committee on Aggrievances reported 
that the fees now collected for public purposes, besides being 
"excessive, great and oppressive," were "under no regulation 
of any law of this Province.'' The Lower House immediately 
appointed a committee to bring in a bill with the now well- 
known title of an Act "for amending the staple of tobacco, for 
preventing frauds in His Majesty's customs and for the limita- 
tion of officer's fees." This was another event in the yet 
unsettled warfare between the proprietary government and the 
people of Maryland, for the committee lost no time, but intro- 
duced the bill on October 14th, and on the 18th the bill was 
passed. 

The bill as usual, failed of passage in the Upper House, and 
the Lower House, anxious that, at least, there should be no 
doubt as to its position on the matter began to pass resolu- 
tions. The first resolution treated the contention from an 
entirely public standpoint and was passed on the 18th. It was 
as follows : 

"Resolved, That the Representatives of the Freeman of this 
Province have the sole Eight, with the Assistance of the other 
part of the Legislature, to impose or establish Taxes or Fees, 
and that the imposing, establishing or collecting any Taxes or 
Fees " * ''" under Colour or Petense of any Proclamation, 
is arbitrary, unconstitutional and oppressive." The other res- 
olution took a very personal turn, notwithstanding the fact 
that up to that time the relations between Governor Eden and 
the members of the Lower House had been personally cordial. 
It was short and to the point, as follows : "BesoJved, That the 



24 FIRST CITIZEN AND ANTILON. 

Advisers of the Proclamation are tlie Enemies to the Peace, 
Welfare, and Happiness of this Colony and the Laws and Con- 
stitution thereof." The members of the Lower House made a 
great point of claiming that the Governor was not alone in his 
action, but that there were those behind him whose identity 
they were anxious to discover. The vote in favor of this reso- 
lution was practically unanimous, and was as follows : In the 
affirmative — Messrs. Jordan, Grahame, Johnson, Chase, Mar- 
shall, Parran, Weems, Harrison, Smallwood, Handy, Dennis, 
J. Richardson, Moale, Risteau, Deye, Yeazey, Baxter, Ward, 
Beall, Tyler, Canter, Paca, Tilghman, Earle, T. Wright, Sv 
Wright, Holland, Chille, Robins, Allan, Wootten and Beatty. 
Those in the negative were Messers. Richardson, Edmonds 
and Hall. 

On November 22d, the Governor was addressed in a cour- 
teous but determined petition, in which he was asked to 
name those who were his advisors in issuing the proclamation. 
It was now found impossible for the Assembly to transact any 
further Legislative business. The members spent the remain- 
ing time in passing resolutions condemnatory of the proclama- 
tions and in bitter communications and conferences between 
the Upper and Lower House. 

Governor Eden, however, was an able defender of his side 
of the coutrovers}'. On November 29, 1771, he addressed the 
Lower House a letter which contained a stinging reprimand 
for their comments on the proclamation. He takes the ground 
that the members are attempting to stir up popular discon- 
tent. He says : " The sentiments you have expressed against 
my preclamation have proceeded from your persuasion of it 
having been calculated to prevent litigation and secure the 
public peace, and your apprehension if left to its propei' effect, 
would extinguish the discontent you take so much pains to 
kindle." The Governor goes further. He charges the House 
and its Speaker with a number of unlawful actions, some con- 
nected with and others having no reference to the disputed 
subject. He was particularly severe with the Lower House 



GOVERNOR EDEN's ADMINISTRATION. 25 

for tlieir action in arresting William Stewart, the clerk of the 
Land Office, and characterizes it as the conduct of a highway- 
man. Governor Eden then very courageously states that none 
but himself was responsible for the proclamation, as he had no 
advisors whatever. He stated, besides, that the position of the 
Lower House is insincere, as they claim that fees should be 
collected in an ordinary action at law, whereas the lowest 
amount thus collectible was much larger than the ordinary 
fees of office. 

The Governor next went into a historical argument in justi- 
fication of his position. He claimed that all the offices were 
the private right of the Proprietary except the Land Office, 
which he admits to be of a quasi-public nature. The proclama- 
tion, he says, was written only after the most mature consider- 
tion. In conclusion Governor Eden says : "So clear is my 
conviction of the propriety and utility of a regulation to pre- 
vent extortion and infinite litigation that, instead of recalling 
it, if it was necessary to enforce it, I should renew my pro- 
clamation, and, in stronger terms, threaten all officers with my 
displeasure who shall presume to ask or receive of the people 
any fee beyond my instructions." The next day Governor 
Eden prorogued the Assembly until February 18th. He made 
a speech to the Assembly on the last day of its session, and 
complained of the vast loss of time to themselves, and the 
expense of money to the country which had accrued this ses- 
sion, and the very little liusiness that has been done at it. He 
further told the Assembly that the excited treatment of the 
proclamation was due to the wrong idea that they had acquired 
over that document, which was issued solely for the benefit of 
the people of the Province and so understood by most of them. 
Early in 1772 the Governor prorogued the Assembly again, 
and so with several other prorogations 1772 expired without 
a meeting of the Legislature. 

The next meeting of the General Assembly was not until 
June 15, 1773, a period of nearly two years. In the meantime 
the people either paid fees under protest, according to the old 
law, or refused absolutely to pay them. There was little to 



26 FIRST CITIZEN AND ANTILON. 

support Governor Eden's claim that most of the people under- 
stood the proclamation to be in their interest, or, at least, they 
did not consider it to be for their benefit to the extent of 
making them willing to pay the fees. It seems, however, that 
in most instances fees were collected according to Governor 
Eden's way of thinking, and that the popular idea of a collec- 
tion by an action at law was seldom if ever, put into practice. 
The issue was clearly drawn. The people of the Province, 
through their rej)resentatives in the Lower House of the 
General Assembly, held that that body had the sole right to 
regulate the fees of all public offices, as they were subservient 
to the public and created for their interest in the first place. 
The claim of the Proprietary, represented by Governor Eden, 
was that the offices, with the exception of the Land Office, 
which was in a degree excepted, were to be used for the private 
benefit of the Proprietary, did not find many supporters. Both 
sides were sincere, open and courageous in the controversy. It 
was Maryland's phase of that great question of popular rights 
against the usurpations of arbitrary authority, which was soon 
to cast the Thirteen Colonies into war with the mother country. 



GOVERNOR EDEN's ADMINISTRATION. 27 



CHAPTER 4. 

TWO GLADIATORS. 



1773. Whilst these acrimonious proceedings between the 
Governor and his Council and the Lower House of the Legis- 
lature were in progress, the people of the Province grew more 
and more restive under the attempt of the Governor to lay 
'taxes upon them without the authority of the House of Dele- 
gates, for these fees were only another name for taxes as a 
large part of the business of the Province of the most impor- 
tant character, could not be transacted without paying them, 
or, if refused, payment could be insisted through the sheriff 
at once by a sale of the delinquent's property. It was an axiom 
among Marylanders that their property could not be lawfully 
taken from them without their consent or the consent of their 
representatives. Xo measure of public import was ever so 
wisely discussed. From the Freemen of Maryland it went to 
the people ; from the people to the press ; from the press to 
the polls ; and from the polls back to the Legislature again. 
The epoch became one of the most important in Maryland's 
interesting history. 

"Political parties were formed along the alignment of 
approval of, or opposition to, the proclamation. They were 
suggestive arrays. On the one side were the governor; his 
council ; the established clergy, interested that, by another 
proclamation, their fees had been raised from thirty to forty 
pounds of tobacco per poll on the taxables of the Provinces ; 
the courtiers of the Governor, and the office-holders ; on the 
other the great body of tlie people and the lawyers, John 
Hammond and Daniel Dulany alone excepted. This devotion 
to the cause of the people Avas unselfish and costly. From 
the almost royal Proprietary came the highest official posi- 
tions, the judicial places, with dignities and emoluments of 



28 FIRST CITIZEN AND ANTILON. 

varied and lucrative character. These positions represented 
social status as well as official honors and rewards The 
people had little to give, and yet, when the doubtful and 
dangerous struggle came, the lawyers of Maryland surged to 
the forefront at the first sound of contest (Bench and Bar of 
Maryland, page 125) on the side of the people." Two clergy- 
men alone in the whole Province opposed the proclamation. 

Forced, finally, by the insistent events environing him. 
Governor Eden had to abandon the makeshift of prorouging 
the Legislature and of filling vacancies in the Lower House by 
special warrants of election, and dissolved the Assembly and 
appealed to the people by a general election for a new body of 
representatives in the Lower House. The election was ordered 
for May 20, 1773. From the, beginning of the year down to 
the period of election, the Maryland Gazette, the single journal 
of the Province, was filled with the most bitter and interesting 
correspondence upon the proclamation and the vestry Act. 
Tlie lawyers, by their magnanimous conduct and able leader- 
ship of the cause of the peoj^le, became the subject of general 
and personal abuse from the official party. For four months 
the Gazette teemed with communications on either side of the 
question. Second only in imj)ortance to the greater corres- 
pondence was that of Thomas Johnson, Samuel Chase and 
William Paca against the Governor's position on the vestry 
question, and the Rev. Jonathan Boucher, rector of St. Anne's, 
in upholding the executive. Mr. Boucher displayed extra- 
ordinary talents in research, originality and powers of invec- 
tive. In minor notes on thfe general question were "A Client," 
Freeholders of St. Anne's," "A Protestant Whig," "A 
Tailor," "A Planter," "Plain Truth," "Patuxent," "A True 
Patriot," "Amicus Patrise," "An Eastern Shore Clergyman," 
"Lawyer," "Clericus," "Twitch," "Office Holder," "Brutus," 
"A Protestant Planter " and " Tradesman," and "An Inde- 
pendent Whig." The Whigs were the supporters of the 
Governor. As usual, Avith the opposition, the Maryland 
opponents of Governor Eden's proclamation were designated, 
" Tories." 



GOVERNOR EDEN's ADMINISTRATION. 29 

Rising pyramidal above all the minor notes came the letters 
of First Citizen and Antilon- — a correspondence that created 
the intensest interest throughout the colony, and won for one 
of the writers the gratitude of the people of Maryland, and 
became national in its history. 

Daniel Dulany, Jr., also known as Daniel Dulany, of Daniel, 
was born at Annapolis, July 19, 1721, and was educated at 
Eton and at Clare Hall, Cambridge. He entered the Temple, 
and, returning to the colonies, was admitted to the bar in 1747. 
To him tlie profound and brilliant McMahon pays this glow- 
ing tribute : " For many years, before the downfall of the 
Proprietary government, he stood confessedly witli,out a rival 
in this colony, as a lawyer, a scholar and an orator, and we 
may safely regard the assertion that, in the high and varied 
accomplishments which constitute these, he had amongst these 
sons of Maryland but one equal and no superior. We admit 
that tradition is a magnifier, and that men even, through its 
medium and the obscurity of a half century, like objects in a 
misty morning, loom largely in the distance ; yet, with regard 
to Mr. Dulany, there is no room for illusion. ' You may tell 
Hercules by his foot,' says the proverb ; and tliis truth is as 
just when ajjplied to the projjortions of the name as to those 
of the body. The legal arguments and opinions of Mr. Dulany 
that yet remain to us bear the impress of abilities too com- 
manding, and of learning too profound, to admit of question. 
Had we but these fragments, like the remains of splendor 
which linger around some of the ruins of antiquity, they would 
be enough for admiration. Yet they fall very short of furnish- 
ing just conceptions of the character and accomplishments of 
his mind. We have attestations of these in the testimony of 
contemporaries. For many years before the Revolution, he 
was regarded as an oracle of the law. It was the constant 
practice of the courts of the Province to submit to his opinion 
every question of difficulty which came before them, and so 
infallible were his opinions considered that he who hoped to 
reverse them was regarded as ' hoping against hope.' Nor 
was his professional reputation limited to the colony. I have 



30 FIRST CITIZEN AND ANTILON. 

been credibly informed that lie was occasionally consulted 
from England upon questions of magnitude, and that, in the 
southern counties of Virginia adjacent to Maryland, it was not 
infrequent to withdraw questions from their courts and even 
from the Chancellor of England to submit them to his award. 
Thus unrivalled in professional learning, according to the 
representations of his contemporaries, he added to it all the 
power of the orator, the accomplishments of the scholar, the 
graces of the person, the suavity of the gentlemen, Mr, Pink- 
ney himself, the wonder of his age, who saw but the setting 
splendor of Mr. Dulany's talents, is reputed to have said of 
him that even amongst such men as Fox, Pitt and Sheridan 
he had not found his superior." 

Charles Carroll, of Carrollton, destined to meet the most 
learned and distinguished man in America in the gladiatorial 
field of forensic and political discussion, Avhile these animated 
debates and exciting controversies were in progress, lived in 
Annapolis where he was liorn September 20, 1737. In 1745, 
he was taken to the College of English pJesuits at St. Olmer, 
France, where he remained six years, and then was sent to the 
Jesuit College, at Rheims. After one year's study of the civil 
law at Bourges, he went to Paris, studied two more years, and 
began the law in the temple. At 27 years of age, he returned 
to America, and at the breaking out of the Revolutionary War, 
was worth $2,000,000. 

Though the richest man in America, learned in the law, 
polished with the latest culture of Europe, an upright citizen, 
and an ardent patriot, Charles C^arroll, of Carrollton, was not 
permitted to vote at any election, municipal or provincial, . 
because he was a member of the Roman Catholic Church, for, 
at this period, while Roman Catholics were permitted to hold 
high lucrative and responsible offices, all were disfranchised 
under the intolerant spirit that permeated the English statutes 
and which had inspired the penal laws of Maryland, now under 
Protestant rule, a province which under Catholic had been first 
in the "wide, wide world" to raise the banner of perfect civil 
and religious liberty. 



GOVERNOR EDEN's ADMINISTRATION. 31 



CHAPTER 5. 

DULANY'S FIRST LETTER APPEARS IN THE MARY- 
LAND GAZETTE. 



1773. On Thursday, January 7, 1773, Dnlany's first commu- 
nication appeared in the 31arijla)id Gazette, printed in Annapolis. 
The "dialogue" came suddenly like a meteor from a star-lit 
sky, and flashed with such brilliancy amongst the constellation 
of lesser lights that it completely obscured their milder rays. 
The communication in full was : 

"You will be pleased to give a place in your Gazette to the 
following dialogue, which was set down by a gentleman who 
overheard it, after a small recollection, perfectly in substance 
and nearl}' in words, as it fell from the speakers. The 
unhappy and prevailing aversion to read performances of 
elegance as well as moment to the publick seems to bode that 
this so deficient in the first point will not find a multitude of 
readers — But if I am not grossly mistaken, those few who will 
not be frightened by its length from travelling through it will 
receive both entertainment and instruction to requite them, in 
some degree, for their pains. 

A Dialogue between two Citizens. 

"1st Cit. What, my old friend! still deaf to the voice of 
Reason? Will fair argument make no impression on you? 
Consider well the irreparable mischief the part you are going 
to act, may do to the Cause of Freedom : Your Steadiness, your 
Integrity, your Independence made us set you down, as a sure 
Enemy to Government, and one too, whose force would be felt. 

"2d. Cit. Let me repeat to you my caution, against this 
strain of compliment; it suits not with your professions of 



32 FIRST CITIZEN AND ANTILON. 

OPPOSITION, and is in trutli, somewhat too courtly for ray palate : 
But of this however you may rest assured, that no man is 
more open to conviction, than myself. The publication of the 
opinionist, which you, with much zeal and devotion, would set 
up as the only rule of faith, has let in new light upon my 
mind. I worship not the golden calf ; but cleave to the relig- 
ious rights and ceremonies established by my forefathers ; 
and in this, I think, I am both conscientious and politick. It 
was for the same despicable idolatry- and falling off as yours 
that the unhappy and misguided king Jeroboam and his people 
were afflicted with those .mighty evils, which are recorded in 
holy writ. 1 Kings, xii. 2 Chron. xiii. I have impartially 
examined everything you suggested in our last conversation, 
but, cannot discover therein, the least semblance either of 
reason, or argument ; and until you press me with some more* 
weighty objections, I shall still continue a cordial, and deter- 
mined friend to Government, and, under favour, to Liberty 
too : But, in the name of Common Sense, no more fruitless 
experiments on my passions ; a truce to your threadbare topics 
of Arbitrary Princes, Proclamations, and your forty per poll ! 
You pretend at least, to be so haunted with these terrors, that 
I verily believe in my heart, if it were in my power, to produce 
the opinions of the greatest Counsel in England, upon a full 
and fair state of the case, point blank in favor both of the 
Proclamation and Forty per poll, you would swear that they 
were forgeries ; or if you allowed them to be genuine, that 
their authors were barefaced knavish Lawyers, who would 
at any time, sell opinions contrary to their consciences, to 
serve a present turn, to get an office on this side the water, 
for some imjjortunate dependent, or relation in the fourth or 
fifth degree ; or that they would do it to support power, and 
very likely, that they were downright blunderbusses : 

"And this, too, would be ail/f«V argument. 

"1st Cit. I say nothing upon that matter for the present, 
but let such opinions appear when they will, there shall be 
those which shall confront them, though they come subscribed 



GO\'ERNOK EDEN's ADMINISTKATION. 3S 

with the name of Camden, if that couki possibly be.* But you 
dechire yourself a determiued friend both to Government, and 
Liberty. Monstrous contradiction ! If this, however, be your 
final resolve, I am really very sorry for it ; Government has 
but too many, and too powerful friends already ; the current 
sets so fatally strong that way, as to give us serious cause to 
dread, that we shall be overborn in all our struggles to resist 
it ; the friends of the Constitution, with whatever cheerfulness 
they may affect to gild their countenances, wear a certain 
sadness about their hearts ; they see the strongest symptoms of 
the sickness of their cause, even unto death; Court-influence, 
and Corruption, rear their glittering crests. 

" 2d Cit. Court-influence and Corruption ! But, my 
flowery antagonist, is every man who thinks difierently from 
you on public measures, influenced, and corrupted ? Now, I 
must confess you give me no reason to complain of your over- 
complaisance. Is the majority of your fellow-citizens, which 
you seem to apprehend will be against you, thus all blotched 
and tainted? 

"1st. Cit. God forbid it should be the case of eveby indi- 
vidual ! but alas ! it is so of too many. Your conduct, and 
the conduct of such as you, we rather incline to impute to 
the irresistible bias of personal attachment, or to a certain 
unaccountable infatuation, which will sometimes overtake the 
wisest, and the best. 

"2d. Cit. Your insinuation is too gross and injurious to be 
qualified, or atoned for, by this apology of yoiirs ; it will not 

*Here it is difticult to determine the speaker's meaning. He may either 
intend that Lord Camden, after having been a judge and otherwise 
dignified, can no longer give opinions as a practicing lawyer; or that if 
he could, he cannot possibly diller from our own great lawyers. And in 
this latter presumption he may think himself Avarranted by his Lordship's 
sentiments, which ai-e cited in that fine monument of reasoning and litera- 
ture, the Address of the Lower House ; which may be seen in the Votes 
and Proceedings of 1771, page 66; which citation it is well worth review- 
ing and comparing with another of the sentiments of the same light and 
ornament of the present age, page 86. 
3 



34 FIRST CITIZEN AND ANTILON. 

pass upon one of my steadiness you hnoic. You would braud 
every man with the odious appellations of Court-liiieling and 
Sjcophant, who dares to exercise his own judgment, in opposi- 
tion to yours, and that of your party. Is it not the most 
■criminal, and unjjardonable arrogance, thus to strike at the 
public reputation? I know not what, or whom you mean, by 
We and the friends of the Constitution : but, whilst you are thus 
wrongheaded, and breathe so imperious and tyranical a spirit 
withal, you will be the constant object of derision, or hatred; 
3'ou may upbraid with the epithets of Tool, or Courtier (than 
which nothing can he more foul, or reproachful), you will still 
ibe regarded with the scorn, or pity of every man of sense and 
spirit ; the blessings of Order, will still be preferred to the 
horrors of Anarchy ; for to such must the principles of those 
men inevitably lead, who are fixed in their purpose, of oppos- 
ing Government at all adventures, and preposterously contend, 
that such a system is neither interest, nor faction, but genuine 
patriotism. Alas Sir ! ill must it fare with the popular interests, 
when the Leading Representatives, and Great Speakers, instead 
of making amends to their country, by some master stroke of 
wise policy, for having rejected a regrilation offered upon such 
advantageous terms, as the most sanguine, and staunch friend 
of the people, never dreamed of ; still rush on in their destruc- 
tive career, laying their trains at each outset of public business, 
to blow up everything into a combustion, in order, that the 
rage and delusion of the present, may support and sanctify 
the mischiefs of the preceding Session ; whilst the public debt, 
without purchasing any benefits, is swelling to an enormous 
size, on the Journals ; our staple falling into disgrace in foreign 
markets ; and every man's property in a degree, decreasing 
and mouldering away. Friends to the Constitution, whilst 
they are stretching every sinew to confound all the public 
counsels, and thereby, destroy every good eftect of that Con- 
stitution. Gracious powers ! is }}ot this n i)io))strous contradic- 
tion ? 

" Take a liberal and impartial review of your adversaries, in 
every point of light : Have not they as deep a stake in the 



GOVERNOR EDEN's ADMINISTRATION. 35 

safety of the Constitution as you, or your friends ? What can 
possibly tempt them to join in the demolition of that bulwark, 
which alone shelters them in the enjoyment of their fortunes, 
and of every comfort that can plead to the reason, and interest 
the heart of man? If they are Tools and Hirelings for this 
purjiose, then are they a kind of lunatic wretches, that no 
language can describe. Will the general behavior of none of 
them authorize you to entertain more honorable sentiments of 
their spirit, than you express V Would they not, think you, 
spurn at an attempt to frighten, or bribe them, with indigna- 
tion equal to that which would fire the breasts of those, who 
are eternally carrying out as if the enemy were in the gate, 
and scattering distraction and distrust through the commu- 
nity ? Who are forever reviling others, and bepraising their 
own integrity, wisdom, and I know not what? Lay this truth 
sadly to heart, Sir, the Politician who stuns you with harangues 
on his own angelical purity, is as certainly an arrant imposter, 
as the woman who unceasingly prates of her own chastity, is 
no better than she should be ; or the soldier who is always the 
hero of his own boisterous tale, is at bottom but a rank 
coward. Are there among them no substantial merchants, 
who are much likelier to be gainers by sticking close to their 
own business, than by watching the smiles or frowns of a 
Court ? These are men, whom I should hardly expect to find 
in a plot against Liberty ; since Commerce is ever engrafted on 
the stock of Liberty, and must feel every wound that is given 
to it, for when Liberty is struck to the heart. Commerce can 
then put forth her golden fruit no more ; but, must perforce 
droop and die. Do you conceive, that such men can possibly 
be hired, unless they be overtaken by the htfainatkm you 
talked of, to engage in pulling down a fair and stately and 
useful edifice, with the ruins of which, as soon as it is leveled 
to the ground, they and their families are to be stoned to 
death ? For, they are not entitled, by their mercantile educa- 
tion, to keep a constant eye upon the great and gainful public 
offices, or to expect that any of them will fall to their share, 
9,8 those of some other professions are. In all growing cities. 



36 FIRST CITIZEN AND ANTILON. . 

and communities at large, they are especial rfseful and able 
members, when acting in concert with the Commons, but, put 
them into the other scale, and they that instant lose all their 
weight. I fancy 3'ou will hear many of my brother-mechanics 
raising their voices against you, who scarce know the meaning 
of your Court-iuHuence, and Corruption, who will stand on 
the side of him, whom they thiidc, from an unprejudiced 
observation of his manners, the likeliest to shield them from 
oppression ; or it may be, the encrease of whose business, as 
it is closely connected with the prosperity of the city, l)ids the 
fairest to enlarge the sphere of action, and importance, not 
only of every tradesman, but, of every inhabitant who lives by 
his labor, and the sweat of his brow. 

" 1st. Cit. To these questions I do not choose to give an 
answer. But, thus much I will venture to assert, that a thou- 
sand arguments may be brought to prove, that our le.\ders 
cannot be either mistaken, or dishonest. I will only mention 
two, which are abundantly sufficient. First, the cdear and 
undeniable consistency of their public conduct; and secondly, 
their noble and uniform abhorrence of being seen at Court, or 
in the infectious company of Courtiers. 

" 2d Cit. Consistency, according to your meaning of it, 
may be now and then the sign of a good heart, but it never is 
of a good head. It is evident to a man of my plain under- 
standing, that a wise politician, if he cannot steer due on to 
his point, will shape his course a different way, and win upon 
it by degrees, and yet be both firm and consistent. He will 
never scruple to give up trifles ; to gain solid advantages. 
But, the possession even of this consistency, when it is 
appealed to as a merit, must undergo a severe scrutiny. I am 
somewhat advanced in life, you know ; and easiness to believe, 
is a plant of slow growth, in an aged bosom. A man must not 
pretend to reconcile his conduct with consistency, by deceitful 
refinements ; it Avill not serve his turn to tell me, that he acts in 
two dift'erent characters, when I find him declaring one thing 
today, and another tomorrow, on some public and important 
question ; or, when I hear him jDronouncing that certain bodies 



GOVERNOK EDEN's ADMINISTRATION. 37 

of men have peculiar and indubitable rights, at the verj time 
he is moving heaven and earth to destroy the only Law, which 
is the foundation of those rights. Neither must this uniform 
abhorrence of Courts ; this excessive delicacy in the choice of 
company, be received on the mere assertion of the party. 
When a Candidate, or his friends, warn me of the danger of 
trusting a man who associates with such and such particular 
persons, whom they are pleased to traduce as Courtiers and 
Place-hunters ; or who happen to dine at Court, now and then, 
I am not pained, or difficulted to ask them, whether, they 
cannot recollect the time, when they themselves were guilty of 
this very crime ? or when they were even the common objects 
of ridicule, for being Itoiid and glove at Court, as it were, all of 
a sudden ? Whether, they have not been so bit, so intoxicated, 
as to forget the old proverb, that walls have ears, and to break 
out into boasts and raptures at their brightening and unex- 
pected hopes of preferment '? If I can catch them tripping, or 
prevaricating upon this trial, they cannot be angry with me 
upon the matter, if I conclude, that their patriotism is all a 
cheat, and that in fact, disappointment is rankling in their 
hearts, nay that, notwithstanding their old sores, if the bait 
were again thrown out to them, they would be such gudgeons 
as to swallow it with the utmost greediness. 

" 1st. Cit. However this feigned trial of yours might turn 
out, I cannot see how my friends would be affected by it ; as 
it is notorious to the whole city, as well as to the whole 
province, that no part of their conduct can possil)ly fall within 
the description. 

" 2d. Cit. God forbid it should be the case of every iipi- 
vidual! or indeed of any of them. But to pursue my train: 
If I can tell them with truth, that I have not only been one of 
those, who have stared with astonishment at their childish 
and unguarded Court familiarities even in the public streets, 
but that I can recount to them their courtly voyages by water, 
and journeys by land, their carousings, their illuminations, 
their costly and exquisite treats, to gorge the high-seasoned 



38 FIRST CITIZEN AND ANTILON. 

appetite of Government ; if I can name the very appointments 
they have laid their fingers upon, and assure them, that I 
have been well informed of their eager impatience for the 
removal of every impediment, which stood in the way of theii 
exaltation, with many other glorious and patriotic particulars ; 
if— 

" 1st. Cit. For Heaven's sake, to what purpose is all this 
idle talk ? You well know, it does not touch us, we are not 
galled, and therefore cannot wince. 

" 2d. Cit. I shall push it no further then. I only meant to 
shew you the rules I lay down to myself, for judging on these 
occasions ; and in this, no creature can accuse me, either of ill 
nature, or foul play ; for, I would by no means confine the 
man of my choice to any particular set of acquaintance. If 
he has a relish for society, I like him the better for it ; since 
it proves he has a generous heart. I think he may spend his 
hours of relaxation in the company of sensible persons, though 
they chance to differ with him in their political creed, and yet 
return to his own parlor, the same hearty and unshaken friend 
to his old public opinions as ever. I never tremble on this 
account. Indeed, if I be rightly informed, the conversation of 
these kind of people seldom turns upon the politics of their 
own country, in mixt circles ; they are willing enough to leave 
behind them, when they go abroad, what is sufiiciently vexa- 
tious and troublesome, when they are obliged . to apply their 
thoughts that way. I have often lamented, that Elect ioneer big, 
as it is called, sli(juld be so ruinous to private attachments and 
good fellowship, and should generate such black blood in 
society as it does ; and those who administer to this cruel 
distemper, whether they lurk in secret, or act openly, have (in 
my humble opinion) much to answer for. We frequently see 
the bonds of nature rudely torn asunder ; and I believe there 
may be instances produced from story, of confederated bands 
of Politicians hacknied in their trade, who have availed them- 
selves, without remorse, of the avowed rawness, simplicity, 
and vanity of youth, to accomplish their purposes, though 
they divided a house against itself, and kindled the inextiu- 



GOVERNOR EDEN's ADMINISTRATION. 39 

guishable tlames of hatred and animosity, even in the hearts of 
brothers. 

"1st Cit. Wormwood ! Wormwood ! 

" 2d Cit. This indeed must turn the milkiest nature into 
bitterness. Had I been trained up in the scliools of those 
orators who were heretofore the subjects of your glowing 
panegyrick, I should dress my thoughts in such language, as 
well might justify your exclamation. These shocking convul- 
sions have often tempted me to think, that I should not break 
my heart if a Law were expressly provided against this darling 
privilege of canvassing ; that the suffrages of the people might 
be permitted to take their free course on the day of election. 
As to what you whispered to me yesterday, about the resolu- 
tion of some of ytmr patriotick friends, not to serve, unless 
those whose principles chime in with their own were chosen 
along with them ; I must take the liberty to reply, that I look 
upon such a threat as a mere raw-head and bloody bones, 
which will not in the end advantage their cause ; but, be that 
as it may, to speak in the language of the good old song of 
Chevy- Chaee : 

" ' I trust we have within the Realm, 
" Five hundred meu as good as they.' 

" Farewell, Sir, I shall torture 30ur patience no longer with 
my tiresome and homely discourse ; but learn, for the future, 
to be charitable to those who differ from you in opinion; and 
Jnd</e )H>f Jest ye hejtidged." 

An insight into the feelings of the people as to the object of 
the communication and the author of it, are displayed by a 
shorted communication from another source that appeared in 
the Ga?:etfe of January 21st : 

Mr. Printer. 

"The dialogue, which you were so obliging as to publish in 
your Gazette, of the 7th Instant, has, it seems, inflamed the 
curiosity of your fellow-citizens, to an inordinate degree. 
^Numberless excursions have been made into the field of con- 
jecture, touching the editor, Avho is supposed, and on very 



40 FIRST CITIZEN AND ANTILON. 

good grounds, to be the same with him who overheard the 
conversation, which is committed to paper. Stratagems, after 
much profound debate, have been devised to ensure the grati- 
fication of that universal passion of being in the secret. And 
many, after suffering repeated discomfitures in their efforts 
to discover my person, have taken upon them to insinuate, 
with a significant shrug and arch leer, that they have been 
favored with a peep behind the curtain — proceeding so far 
in confirmation of their importance as to offer a clue to con- 
duct the inquisitive through the labyrynth, by particulizing 
my dress, gait, and certain natural marks of designation, 
which I bear in my visage. I can, however, safely protest 
that not one of these pretended mj^sticks know any more of the 
above circumstances than of the cut of the doublet which the 
present Spanish monarch made with his own royal hands, of 
the dimensions of Prester John's foot, or of the mole under 
Mahomet's ear. Indeed, the picture which they have been 
pleased to draw of me is so far from the true likeness, that I 
am a tall, thin, large boned man, with broad shoulders, black 
eyes, olive complexion, and a suit of black curled hair ; and in 
my dress and gait, after the common fashion. Nor do I, at 
present, recognize any singularity which distinguishes me 
from the rest of the world, unless it be a sudden and insensi- 
ble application of my right hand to the region of the left 
hypocondrium, both in and out of company ; which is owing 
to a throbbing of the spleen — a disease I have contracted by 
remaining too long in an incurvared postule, when engaged in 
contemplation of the publick miseries Ave are likely to be such 
deep sharers in, through the present prevailing influence, 
altogether as unaccountable as it is pestilent. — I have heard 
myself pronounced by some, who only see me feelinglij, a con- 
temptible anonymous scribbler ; who wear my dagger under 
my cloak. I shall, however, continue in my invisible agency ; 
trusting that the eye, from which I shall prevail to purge the 
film, will not be fatally closed against the light of reason, 
through very perverseness, and anger, that the hand which 
exhibited the medicine is unknown. If my pen be guided by 



GOVERNOR EDEN's ADMINISTRATION. 41 

truth, if I made it a religion to obtain from the private, unless 
where head-long indiscretion has involved and blended it with 
the publick character ; it is a thing of no magnitude, whether 
my real name or a fictitious signature appear at the bottom of 
my page. If I be contemptible, my foll}^ must pour balm into 
the wound my malice inflicts. 

"Slander, it must be confessed, is defeatable enough, of all 
conscience, when it issues from the press. But there is yet ■b 
species of slander, infinitely more infernal — that which is 
forged on the spur of every occasion, and given out to be 
distributed by the well-trained hirelings of a court or faction. 
This is generally conveyed through so many dirty conduits, 
and discoloured with such a variety of poisons, that it is 
impossible to trace it to its true source, until it has done its 
work. I question not but that the Devil himself, who is the 
father of slanders, if it had been left to his choice, would have 
preferred this kind of vehicle, as more effective than the 
instrumentality of all his nominal brethren of the press. But 
the charge that I am anonymous is, of all others, the most 
absurd and rash, as it suggests the strongest argument that I 
am not actuated by vanity or a lust of praise — and in this 
particular, I but pursue the track, with steps however unequal, 
trodden by those geniuses, who have shown the brightest, and 
done the greatest good in their generations. And to explain 
either the necessity, or propriety, of this method of instruct- 
ing the publick in a free (joveiDincnt would be to insult the 
intellects of my readers. If I could possibly conceive that 
any advantage would redound to the publick by an open mani- 
festation of myself, I would, wdthout a moment's hesitation, 
stand forth in my natural person ; sensible as I am, that by 
so doing I should take by the tooth, two ever angrij hems; 
whose appetites, it is probable, are now pretty keen for prey ; 
considering their disappointment has constrained them, for a 
tedious and dreary season, to suck their own paws, after being 
set upon a much more substantial repast. 

'' The rage of these monsters, for such I am informed one of 
the political constellation has vindicated to himself and his 



42 FIRST CITIZEN AND ANTILON. 

fierce compeer, should not appeal to me, as I am convinced, 
that, in all public exertions, much is to be hazarded. The 
fury with which these personages inveigh against those who 
have prevented them in the lucrative posts of government, may, 
I think, be classed among the most pregnant instances of the 
short-sightedness of human nature. For let us suppose that 
their schemes of profit had been crowned with success, and 
they had attained to that pkeferment and pee-eminence they 
reached after with such notorious and ardent longing. Their 
consequence must then have been no longer supported by 
the delusion, partiality or suspicions of the constituent ; but 
by the force of superior talents alone. And in how ample a 
degree they would have needed this superiority of talents we 
may form a tolerable judgment ; as we have room to suspect, 
from the tyranny, injustice and fatal tendency of the counsels 
they have had a principal share in, that their little fingers, if 
they had got into power, would have been heavier on the 
people than the loans of all the present ministers of the con- 
stitution. I think it would have been much the more subtile 
management for those who weir in power, when the work which 
going forward was first discovered, to have retired and 
co-operated heartily with their assailants in breaking down 
all the hindrances to their promotion ; as they could not have 
failed of being shortly entertained with a very grateful spec- 
tacle. They would have beheld them stretching from the 
barrier to the goal with the same unfortunate speed which is 
described, with the finest touches of genuine humor, in the 
following stanza — 

The puzzling Sous of party next appear'd, 
In dark cabals, and midnight juntos met ; 
And now thej' whisper'd close, now shrugging rear'd 

Th' important shoulder ; then as if to get 
New light, their twinkling eyes were inward set, 

No sooner Lucifer recals all'airs, 
Then forth they various rush in mighty fret ; 

When lo ! push'd up to poic'r, and crown'd their cares, 
In comes the other xet, and kicketh them down staii-s. 

Thomson's Castle of Indolence — 



GOVERNOR EDEN's ADMINISTRATION. 45 

"I hope, in mj future communications to the publick, that I 
shall not be looked upon in the odious light of a common 
listner ; insomuch as I report nothing but the secret effusions 
of the hearts of others ; in which, however, I shall continue 
to act a faithful part ; telling the truth, the whole truth, and 
nothing but the truth ; and taking especial care to overhear no 
controversy- which does not turn upon some popular topick, 
which it highly importes your fellow-citizens to know to the 
bottom ; and where one of the parties, at least, is a man of 
sound judgment, acute observation, and candid temper, and 
capable of disclosing a competent portion of solid matter upon 
the argument. Indeed, the gracious reception which the first 
born of my lucubrations has met with from the publick for- 
bids me to prognosticate that so harsh a censure will be 
generally passed upon me ; but rather that I shall be admitted 
as a man exposing my health to the fatigues of unseasonable 
watchings, and the eager inclemency of a wintry sky, for the 
benefit of the Aveal. 

" It is not probable, that room will be quickh' afforded me to 
impart anything to the jjublick, through the medium of your 
Gazette; as a rumor has gone forth that it is appropriated to 
the use of the two lights anci ornaments of the present age, as 
celebrated for their exquisite tastes as their ^irofound juris- 
prudence ; who are determined, at length, to recreate them- 
selves therein with the delicious and welcome banquet of turtle 
and venison furnished out by their reverend provedore — since 
the Baltimore news-paper, though solemnly announced to be 
estahlisheJ, turns out to have as airy a foundation as another 
estahUsJiiiieiit, which has received the sanction of the same 
sacred names ; and their country is now expecting, with anxious 
suspense, Avhen they will fall to. AVhen this entertainment is 
fairly cleared away, I shall then make my request, that you 
•will be so indulgent as to serve uj) to your customers the 
auricular acquisitions of 
^ "Your sincere, humble servant, 

" The Editor of the Dialogue." 



44 FIRST CITIZEN AND ANTILON. 



CHAPTER 6. 

FIRST CITIZEN'S FIRST LETTER. 



1773. The object of the communication of January 7th was 
too plain, and the sarcasm too severe, to be allowed to pass 
unnoticed by the people's party. A reply to it required the 
effort of a well-equipped mind, learned in the law, resourceful 
in debate. That man to champion the cause of the freemen of 
Maryland was Charles Carroll, of Carrollton, 

Under pretense of correctmg errors in the communication of 
January 7th, Mr. Carroll replied to Dulany. 

In the Gazette of February 4, 1773, appeared the first letter 
of Mr. Carroll. It read : — 
Sir: 

" The intention of this address is not to entice you to throw 
off a fictitious, and to assume a real character : for I am not 
one of those who have puzzled themselves with endless con- 
jectures about your mysterious personage ; a secret too deep 
for me to j^ry into, and if known, not of much moment ; of as 
little is it in my opinion whether your complexion be olive or 
fair, your eyes black or gray, your person straight or incm- 
vated, your deportment easy and natural, insolent, or affected ; 
you have therefore my consent to remain concealed under a 
borrowed name, as long as you may think proper, I see no 
great detriment that will thereby accrue to the public ; you 
will be the greatest ! nay ! the only sufferer ; your fellow 
citizens, ignorant to whom they stand indebted for such excel- 
lent lucubrations, will not know at what shrine to offer up 
their incense, and tribute of praise ; to you this sacrifice of 
glory will be the less painful, as you are not actuated hy 
vanity or a lust of fame, and in obscurity you will have this 
consolation still left, the enjoyment of conscious merit, and of 



GOVERNOR EDEN S ADMINISTRATION. 45 

self-applause. Modest men of real worth are subject to a 
certain diffidence, called by the French la mauvaise honie, 
(awkward bashfulness), which frequently prevents their risino- 
in the world ; you are not likely, I must own, to be guilty of 
their fault; in vitiaiti dacii culpae fuga; (the avoiding one fault 
is apt to lead us into another) ; you seem rather to have fallen 
into the other extreme, and to be fully sensible, of the wisdom 
of the French maxim, il fault se /aire valoir, (in the text these 
words have received a liberal interpretation; they mean 
strictly — That a person should assume a proper consequence), 
which for the benefit of my English readers, I will venture to 
translate thus — 'A man ouglit to set a high value on his oivn 
talents.'' This saying is somewhat analagous to that of 
Horace — sxme SKjjerhiam qiAaesitam meritis. (May be translated 
— 'assume a pride to merit justly due.') As your manner of 
Avriting discovers vast erudition, and extensive reading, I make 
no doubt 3^ou are thoroughly acquainted with the Latin and 
French languages, and therefore a citation or two from each 
may not be unpalatable. 

"Having paid these compliments to your literary merit, I wish 
it were in my power to say as much in favor of your candor 
and sincerity. The editor of the dialogue between two Citi- 
zens, it seems, is the same person, who overheard and committed 
to writing the conversation. I was willing to suppose the 
editor had his relation at second hand, for I could not otherwise 
account for the lame, mutilated, and imperfect part of the 
conversation attributed to me, without ascribing the publication 
to downright malice, and wilful misrepresentation. Where I 
can, I am always willing to give the mildest construction to a 
dubious action. The editor has now put it out of mv power 
of judging thus favorably of him, and as I have not the least 
room to trust to his impartialit}' a second time, I find myself 
under the necessity of making a direct application to the press, 
to vindicate my intellectual faculties, Avliich, no doubt, have 
suffered much in tlie opinion of the public (notwitlistanding its 
great good nature) from the publication of the above-mentioned 
dialogue. 



46 FIRST CITIZEN AND ANTILON. 

"The sentiments of the first Citizen are so miserably mangled 
and disfigured, that lie scarce can trace the smallest likeness 
between those, which really fell from him in the course of 
that conversation, and wdiat have been put into his mouth. 

"The first Citizen has not the vanity to think his thoughts 
connDunicated to a fellow citizen in private, of sufficient import- 
ance to be made public, nor would he have had the presumption 
to trouble that awful tribunal with his crude and indigested 
notions of politics, had they not already been eggregiously 
misrepresented in print. Whether they appear to more 
advantage in their present dress, others must determine ; the 
newness of the fashion gives them quite a difierent air and 
appearance ; let the decision be what it wdll, since much 
depends on the manner of relating facts, the first Citizen 
thinks he ought to be permitted to relate them his own way. 

" 1st Cit. I am sorry that party attachments and connexions 
have induced you to abandon old princij)les ; there was a time, 
Sir, when you had not so favourable an opinion of the integrity 
and good intentions of Government, as you now seem to have. 
Your conduct on this occasion makes me suspect that formerly 
some vien, not measures, were disagreeable to you. Have we 
reason to place a greater confidence in our present riders, than 
in those to whom I allude? Some of the present set (it is 
true) were then in power, others indeed were not yet provided 
for, and therefore a push was to be made .to thrust them into 
oflice, that all power might centre in one foni'dy. Is all your 
patriotism come to this ? 

" 2d Cit. I do not like such home expostulations, convince me 
that I act wrong in supporting Government and I will alter my 
conduct, no man is more open to conviction than myself — (Vide 
Dialogue to the words, 'Would be all fair argument.') 

" 1st Cit. I am not surprised that the threadbare topics of 
arbitrary princes, and proclamations, should give you uneasi- 
ness ; you have insinuated that the repetition of them is tire- 
some, but I suspect that the true cause of your aversion 
proceeds from another quarter. You are afraid of a com- 



CtOveknou eden's administration. 47 

parison between the present ministers of this province, and those 
who influenced Charles the First, and brought him to the 
block ; the resemblance I assure you would be striking. You 
insinuate that ' The opinions of the greatest Counsel in England' 
are come to hand, in favor of the proclamation, and 40 per 
poll, and you seem to lay great stress on those opinions. 
A little reflection, and acquaintance with history will teach 
you, that the opinions of Court Lawyers are not always to be 
relied on; remember the issue of Hamhde)i\s trial: 'The 
prejudiced or prostituted, Judges ' (four 'excepted ') (says Hume) 
'gave setdence i)i favour of the Crown.' The opini^on even of 
a Camden, will have no weight with me, should it contradict a 
settled point of constitutional doctrine. On this occasion I 
cannot forbear citing a sentence or two from the justly admired 
author of the Considerations, which have made a deep impres- 
sion on my memory : 'In a question (says that writer) of 
2)ubUc concer)irnent, the opbdon of no Court Lawijer, however 
respectable for his candor and abilities, ought to weigh more tlimi 
the reasons adduced in support of it.' He then gives his 
reasons for this assertion ; to avoid prolixity I must refer you 
to the pamphlet ; if I am not mistaken you will find them in 
page 12. Speaking shortly after of the opinions of Court 
Lawyers upon 'American, affairs,' he makes this jjertinent 
remark: 'They,' (Court Lawyers opinions), 'have been all 
strongly marked with the same character ; they Iiave been, generally 
very sententious, and the same observation, may be applied, to them, 
all, they have declared, that to be legal lohich the minister for 
the time being has deemed, to be expedient.' Will you admit 
this to be fair argument? 

" '2d Cit. I confess it carries some weight with it ; I cannot 
Avith propriety dispute the authority, on which it is founded ; 
make therefore the most of my concession; should I admit 
your reasoning on this head to be just, does it follow, that the 
Court and Country interests are incompatible; that Govern- 
ment and Liberty are irreconcilable? Is every man, who 
thinks dififerently from you on public measures, influenced or 
corrupted ? 



48 FIEST CITIZEN AND ANTILON. 

" IstCit. ^God forbid it should be the case of every itidividacd.'' 
I have already hinted at the cause of your attachment to 
Government; it proceeds, I fear, more from personal consid- 
erations, than from a persuasion of the rectitude of our Court 
measures ; but I would not have you confound Government, 
with the Officers of Government ; they are things really dis- 
tinct, and yet in your idea they seem to be one and the same. 

" Government was instituted for the general good, but Officers 
intrusted with its powers, have most commonly perverted 
them to the selfish views of avarice and ambition ; hence 
the Country and Court interests, which ought to be the same, 
have been too often opposite, as must be acknowledged and 
lamented by every true friend to Liberty. You ask me are 
Government and Liberty incompatible ; your question 'arises 
from an abuse of words, and confusion of ideas ; I answer, 
that so far from being incompatible, I think they cannot 
subsist independent of each other. A few great and good 
princes have found the means of reconciling them even in 
despotic states ; Tacitus says of Nerva : 'Be.s olim dissociables 
miscuit, })rincip<itiurt, ac libertafem,' (thus translated by 
Gordon — Nerva blended together two things, once found 
irreconcileable — Public Liberty and sovereign Power) ; a 
wicked minister has endeavored, and is now endeavoring in 
this /ree government, to set the power of the supreme magis- 
trate above the laws ; in our mother country such ministers 
have been jjunished for the attempt with infamy, death or 
exile ; I am surprised that he who imitates their example, 
should not dread their fate. 

" 2d Cit. This is not coming to the point, you talk at random 
of dangers threatening liberty, and of infringements of the 
constitution, which exist only in your imagination. Prove, I 
say, our ministers to have advised unconstitutional measures, 
and I am ready to abandon them and their cause ; but upon 
your ipse dixit, I shall not admit those measures to be uncon- 
stitutional, which you are pleased to call so, nor can I allow 
all those to be Court hirelings, whom you think proper to 
stigmatise with that opprobrious appellation, and for no other 



GOVERNOR EDEN's .'lDMINISTRATKJN. 49 

reason, but that they dare exercise their ovn judgiaent in oppo- 
nition to yours — [Read tlie 2d Citizen's harangue from the last 
words (opposition to yours) to tlie following inclusively sioeat 
of his hroic] 

" 1st Cit. What a flow of words ! how pregnant with thought 
and deep reasoning ! if you expect an answer to all the points, 
on which you have spoken, you must excuse my jDrolixity, 
and impute it to the variety of matter laid before me ; I shall 
endeavor to be concise, and if possible, avoid obscurity — you 
say — / know not what or ivhoni I mean hy we, and the friends of 
the constitution — / will tell you, Sir, whom I do not mean, from 
whence you may guess at those, whom I do. By friends of 
the constitution, I mean not those, whose selfish attachments to 
their interests has depi-ived the public of a most beneficial 
Law, from the want of which by your own account, 'our 
staple is fallen into disgra^ce in foreign markets and every man's 
property in a degree decreasing and mouldering away.' I mean 
not those few, out of tenderness and regard to whom, the gen- 
eral welfare of this province has been sacrificed ; to preserve 
whose salaries from diminution, the fortunes of all their country- 
men have been suffered to be impaired ; I mean not those, who 
advised a measure, which cost the first Charles his crown and 
life, and who have dared to defend it upon principles more 
unjustifiable and injurious than those, under which it w^as at 
first pretendedly palliated. You see, sir, I adopt the maxim of 
the British constitution — Tlie King can do no wroug. I impute 
all the blame to his ministers, who if found guilty and dragged 
to light, I hope will be made to feel the resentment of a free 
people. But it seems from your suggestions that we are to 
place an unlimited trust in the men, whom I have pretty 
plainly pointed out, because they are men of great wealth and 
have 'as deep a stake in the safety of the coitstitution as any of 
us.' Property even in private life, is not always a security 
against dishonesty, in jnihlic, it is much less so. The ministers, 
who have made the boldest attacks on liberty, have been most 
of them men of afiluence ; from whence I infer, that riches so 
4 



50 FIRST CITIZEN AND ANTILON. 

far from insuring a minister's honesty, ought rather to make 
us more watchful of his conduct. 

"You go on with this argument, and urge me thus : 'Do I 
conceive that such men can possibly he hired unless they be over- 
falcon bij infatuation, to engage to prill down a fair and stately 
edifice, icith the ruin of ivhich, as soon, as it is levelled to the 
ground, they and their families are to be stoned to death.' I have 
Tead of numberless instances of such infatuation ; there are 
now livhig examples of it; the history of mankind is full of 
them ; men in the gratification of sensual appetites, are apt to 
overlook their future consequences ; thus for the present 
■enjoyment of wealth and power — liberty in reversion will be 
easily given up ; besides, a perpetuity in office may be aimed 
at ; hopes may be entertained that the good thing, like a 
precious jewel, will be handed down from father to son. I have 
known men of such meanness, and of such insolence (qualities 
often m6t with in the same person), who exclusive of the above 
motives, would wish to be the first slave of a sultan, to lord it 
over all the rest ; power, Sir, power, is apt to pervert the best 
of natures ; with too much of it, I would not trust the milkiest 
man on earth ; and shall Ave place confidence in a minister too 
long inured to rule, grown old, callous, and hackneyed in the 
crooked paths of policy ? 

"2dCit. ^ I do not choose to answer this last question' — 
you grow warm and press me too close. But why is all your 
indignation poured out against our ministers, and no part of it 
reserved for the lawyers — those cut-throats, extortioners — 
those enemies to peace and honesty, those rtipuhlica' portenta, 
ac pmna fumera, {Mr. Melmoth, the elegant translator of Cicero's 
familiar letters, makes this remark in his notes on the 8th letter of 
the first book, Vol. 1 — 'Cicero has delineated the characters at 
large of these consids (Piso and Gabixius) in. several of his 
orations, hut he has in two words given the most odious picture of 
them that exasperated eloquence perhaps ever drew, where he calls 
them, 'duo reipuhlicoi portenta ac pwtie fumera' — an expression 
for ivhich modern language can furnish no equivalent,') to use the 



GO\'ERNOIl EDEN's ADMINISTRATION. 51 

■energetic words of Tullj, because I can find none in English 
to convey and full meaning, but b}' comparing our harpies to 
those two mousters of iniquity — Piso and Gabinius. 

"1st. Cit. From this vehemence of yours, I perceive you are 
one of those, who have joined in the late cry against lawyers ; 
from what cause does all this rancour and animosity against 
those gentlemen proceed? is it a real tenderness for the 
people, which has occasioned such scurrility and abuse? or 
does your hatred, and that of your kidney, arise from disap- 
pointment and the unexpected alliance, between the lawyers 
and the people, in opposition to ofhcers. This alliance, I 
know has been termed unnatural, because it was thought con- 
trary to the lawyer's interests, to separate themselves from the 
officers ; since a close and firm union between the two, would 
probably secure success against all patriotic attempts to relieve 
the people from their late heavy burthens, of which too great 
a ^pai"t still subsists. 

" 2d. Cit. 'For Heaven's sake to what purpose is all this idle 
talk ? you luell hnnv it does not touch us, ice are not galled and 
therefore need not wince.'' But reconcile, if you can, the incon- 
sistency of conduct, with which some of your favourites may be 
justly reproached ; I have one or two in my eye (great patriots) 
whoae conduct, I am sure, will not bear a strict scrutiny ; '/ 
can tell them wiili truth — (Vide Dialogue from the last words, 
to these) — glorious and patriotic jKirticidars.' 

"1st Cit. Is it a crime then to be seen in the company of 
certain great officers of government ? — surely their principles 
must be pestilential indeed, whose very breath breeds con- 
tagion. But you can name, 'the very appointments, they luxve 
laid their fingers upon, you are well ajypraised of their eager 
impatience to get into office:' if you are well assured of all 
this, if you can name the appointments, why in God's name, 
do it ; speak out, at once undeceive me ; show me that I have 
mistaken my men, that I have been imposed on ; for never will 
I deem that man a fast and firm friend to his country or fit to 
represent it, who under their circumstances, applies for, or 



52 FIRST CITIZEN AND ANTILON. 

accepts an office from government; the application for, or the 
acceptance of a place bj the persons alluded to, would in my 
opinion, as much disqualify them for so important a trust, as 
the duplicity of character, which you lay to their charge. 

" 2d. Cit. Do not mistake my meaning, or wilfully misrepre- 
sent it; I do not pretend to insinuate, that a person accepting 
a place thereby becomes unfit for a representative, but that no 
dependance can be placed in one, who declaims with virulence 
against officers, — and yet would readily take an ojffice. 

" 1st Cit. So I understood you, have I put a different con- 
struction on your meaning ? 

" 2d Cit. Not expressly, but you seem to think the acceptance 
of a place, as exceptionable, as duplicity of conduct ; I am 
not quite of that opinion. 

" 1st Cit. There we difier then ; I esteem a double dealer, and 
an officer equally unfit to be chosen a member of Assembly, 
for this opinion I have the sanction of an Act of Parliament, 
which vacates the seat of a member of the House of Commons 
on his obtaining a post from Government, presuming, that men 
under the bias of self-interest, and under personal obligations 
to Government, cannot act with a freedom and independancy 
becoming a rej)resentative of the people. The Act, it is true, 
leaves the electors at liberty to return the same member to 
Parliament, in which particular (be it spoken with due defer- 
ence) it is more worthy our censure, than imitation; I have a 
wide field before me, but I perceive your patience begins to 
be exhausted, and your temper to be ruffled. I have told some 
disagi'eeable truths with a frankness, which maj^ be thought 
by a person of your sfeaduiess and importance somewhat dis- 
respectful; I leave you to ponder in silence, and at leisure 
on what I have said — Farewell." 



GOVERNOR EDEN's ADMINISTRATION. 53 



CHAPTER 7. 

THE SECOND LETTER OF ANTILON. 



1773. The answer of First Citizen had aroused the camp 
of the gubernatorial party. It was evident that tlie letter was 
the attack of a polished weapon from the well-equipped armory 
of a master mind. Its eifect could not be ignored. Silence 
meant consent to its irresistible arguments in favor of the posi- 
tion of the people. To answer this superb apology could not 
be left to a feeble pen nor an unpracticed hand. In the official 
party there was but one man who by common consent, created 
any hope of meeting, with any attempt at success, this unknown 
and fearless champion of the cause of the opposition. That 
man was Daniel Dulany, of Daniel. The decision made, 
Dulany acted promptly. On February 18th, Dulany 's second 
letter,appeared in the Marykmd Gazette. 

While Carroll feigned that the author of the Dialogue was 
unknown to him, his pointed allusions to Dulany showed that 
he knew his antagonist from the start. The adroitness of 
Carroll was especially marked in his quotation from "Con- 
siderations," — that argument that Dulany had written in 1765 
against England's right to tax the American colonies, and 
which pamphlet, reprinted in London early in 1776, had given, 
it is believed, Pitt his arguments for his magnificent speech in 
Parliament in defence of the colonies when the repeal of the 
first Stamp Act was under consideration. The quotation was 
Dulany against Dulany. Now, Dulany favored a tax, by the 
Executive, without the consent of the people. In "Consider- 
ations," he opposed a tax by Parliament without the consent of 
the people. The ojBfensive pen portrait that Carroll drew of 
Dulany was maddening to that man who had heretofore only 
been the recipient of honors and laudations. A keener appre- 



54 FIEST CITIZEN AND ANTILON. 

ciation of the times and the correspondence will be felt if this 
fact is kept in view — that the governmental party had but one 
reason to explain the cause of opposition to its policy, and 
that reason was that the leaders of the people were animated 
in their course alone by the fact that they were disappointed 
because they had not been given offices by the Governor. A 
party so infatuated could only meet with disaster. In reply to 
Carroll, Dulany, for the first time, under the name of "Antilon," 
wrote :— 

"To THE PllINTERS OF THE MARYLAND GaZETTE. 

"Not having been in any manner, directly or indirectly, concerned 

in any piece, that has appeared in your paper in regard to the 
present political contests, I hope you null give a place to the 

inclosed, in your next Gazette. 
"February 14, 1773. 

"Malevolo nihil acerhius, imperito nihil injustius, homine impu- 
dente nihil molestius. Macrob. de Mor. Hom. 

" The confederacy of infuriate malignancy, overweening igno- 
rance, and habitual licentiousness, would be, indeed, formid- 
able, if there were no other means of defence against its 
attacks, than to dissolve the union by softening rancour, cor- 
recting folly, and reforming profligacy ; but, happily, little is 
to be dreaded from the alliance, when the aims of all its exer- 
tion are easily exposed, and indignation, and contempt, ensuing 
the detection, can't fail to furnish ample succours to repel the 
outrage. 

"The restriction of the Officers (on the falling of the inspec- 
tion LaAv) b}^ the Governor's Proclamation, has been repre- 
sented to be a measure as arbitrary and tyrannical, as the 
assessment of Ship-money, in the time of Charles the First, 
not by fairly stating the nature of each transaction, and 
showing the resemblance by comparison, to convince the 
Understanding; but in the favourite method of illiberal calummy, 
virulent abuse, and shameless asseveration, to afiect the 
passions. 



GO'V'ERNOR EDEN's ADMINISTRATION. 55 

"Inveterate malice, destitute of proofs, has invented falsehood, 
for incorrigible folly to adopt, and indurated impudence to 
propagate. As the artifice employed to raise alarm, can 
succeed only in the proportion that it deceives, it will be my 
endeavour to counteract the pestilent pui'pose, b}^ presenting 
to the reader, for his candid examination, an impartial accoimt 
of the Ship-money, and the Proclamation. King Charles, 
having determined to govern without a Parliament, had, against 
the fundamental principles of a free constitution, recourse to 
the Prerogative for raising money on the subject, though in 
his answer to the Petition of Right, he had recently bound 
himself not to levy any tax upon the people without the con- 
sent of both Hoiises of Parliament. In pursuance of this 
scheme of tyranny, ' Ship-money was raised on the whole 
kingdom, the method fallen upon was, a rate, or proportion on 
each count}', which was afterwards assessed upon the indi- 
viduals of each. The sum raised was about £200,000 sterling. 
Writs were issued, directing the tax to be levied by the sheriffs, 
and requiring them to execute the effects of the people for the 
purpose and to commit to prison all ivho should oppose the tax, 
there to remain, till the King should give order for their delivery.' 
"The necessity, of taking measures of defence against enemies, 
was alleged as a justification of the arbitrary proceeding ; but, 
' it was a fictitious, pretended necessity ; for England was in 
no danger from enemies — on the contrary enjoyed a profound 
peace with all her neighbours, v»-ho were engaged in furious, 
and bloody wars, and by their mutual enmities further secured 
her tranquillity. The writs, which issued for levying the 
Ship-money, contradicted the supposition of necessity, and 
pretended only that the seas were infested with pirates, a 
slight, and temporary inconvenience, which might well have 
waited a legal tax laid by Parliament — besides the writs 
allowed several months for equipping tlie ships, much beyond 
the 40 days requisite for summoning the Parliament, and the 
pretended necessity was continued for near four years.' — Such, 
in substance, was the afiair of Ship-money, the exaction, which 



56 FIRST CITIZEN AND ANTILON. 

Mr. Hampden opposed with the energetic firmness of genuine 
patriotism. 

"That the reader maj^ compare the two measures, and be the 
better able to judge of their similarity, I shall recite the 
Governor's Proclamation, which was in these words : 

" ' Being desirous to prevent any oppressions and extortions 
from being committed, under colour of office, by any of the 
Officers and Ministers of this province, and every of them, 
their deputies, or substitutes in exacting unreasonable and 
excessive fees from the good people thereof, I have thought 
fit, with the advice of his Lordship's Council of State, to 
issue this my Proclamation, and I do hereby therefore order 
and direct, that from and after the publication hereof, no 
Officer nor Officers (the Judges of the Land Office excepted, 
who are subject to other regulation to them given in charge) 
their deputies, or substitutes, by reason or colour of his or 
their office, or offices, have, receive, demand, or take, of any 
person or persons, directly or indirectly, any other, or greater 
fees than by an Act of Assembly of this province, entitled 
An Act for amending the staple of tobacco, for idreventhig frauds, 
in his 3Iqjestys customs, CDid for the limitation of Officers' fees, 
were limited and allowed, or take or receive of any person 
or persons, on immediate payment (in case payment shall be 
made in money) any larger fee, than after the rate of twelve 
shillings and six-pence common current money for 100 
pounds of tobacco, under the pain of my displeasure. And 
to the intent that all persons concerned may have due notice 
thereof, I do strictly charge and require the several sheriffs 
of this province to make this my Proclamation publick in 
their respective counties, in the usual manner, as they will 
answer the contrary at their peril.' 

"It must be allowed, that the table of fees, in the late Insi^ec- 
tion Law, was the most moderate of any, ever established in 
the province — and that the Officers are entitled to satisfaction 
for the services they perform. 

" The reader can't but perceive, that the Officers are restrained 
from taking more from tlie people, than the table of fees, 



GOVERNOR EDEN's ADMINISTRATION. 57 

referred to, allows, as far as the threats of the Governor's 
displeasure, ivlio has jwicer to remove them from their ojfices, can 
operate as a restriction, and that there is no attempt in the 
Proclamation to subject the people, indebted to the Officers for 
services performed to any execution of their effects, or impris- 
onment of their persons, on any account. 

"The Proclamation issued with the professed design of pre- 
venting extortion and oppression ; but if it had not ascertained 
the fees that might be received, it would have been entirely 
ineffectual, as a preventive of extortion. 

"It needs not any display of argument to prove, that the 
Proclamation, being prohibitory, allowed the Officers to receive, 
with impunity, according to the rate referred to. 

"Extortion, according to its proper, legal signification is 
committed when an Officer, by colour of his office, takes 
money (or other valuable thing) which is not due, or more than 
is due, or before it is due. That an Officer is entitled to com- 
pensation, for the services he performs, can't be denied, and 
therefore he is not guilty of extortion, merely in taking money, 
or other valuable thing for his service, unless he takes more 
than is due. It is obvious to common sense, that there must 
be some established measure, or there can be no excess — that 
the term more cannot apply, unless what is due be ascertained — 
there must be a positive, or there can be no comparative. Let 
the result then be considered. If something be undeniably 
due, when a service is performed, and no certain rule, or 
measure to determine the rate, should an Officer take as much 
OS he can exact, he would not commit extortion, according to 
the legal acceptation of the term extortion. The professed 
design of the Proclamation was to prevent extortion, the 
method pursued (and it was the only one that could be pursued) 
to effectuate the prevention, was the settlement of the rates — if 
the Proclamation had authority to fix the rates, according to 
which the Officers might receive, and beyond which, they could 
not lawfully receive, it was preventive of extortion — if it had 
not such authority, it was ineffectual ; but whether it had, or 



58 



FIKST CITIZEN AND ANTILON. 



4 



not, depended on its legality determinable in the ordinary 
judicatories ; for, as the reader will observe, there is no enforce- 
ment provided, or attempted by the Proclamation, with respect 
to those, for whom services might be performed ; wherefore, if 
the settlement of the fees was attended with a legal obligation 
on the Officer not to take more than, and on the people to pay 
a^ much as, the rates established, the Officer's remedy to 
recover his due, on refusal to pay it, must be sought for, 
where any other creditor is entitled to relief — if on the con- 
trary the settlement of fees was not attended with such obliga- 
tion, the Proclamation was ineffectual, except so* far as the 
dread of the Governor's displeasure might restrain Officers 
from taking, beyond the rate allowed by the late Inspection 
Law, and this being a mere question of Law, determinable in 
the same course, that justice is administered in other cases, 
what astonishing extravagance is it to call the Proclamation 
an infringement of the fundamental principles of a free consti- 
tution, and what malice and eff'rontery must tltey be possessed 
with, who have endeavoured to represent it in the odious light 
of an act of tyranny — a measure destitute of all enforcement, 
of every degree of efficacy, which the Law does not give in its 
regular, ordinary course of administration ! — Fortiter a^pergas, 
ut aliquid adhcereat (asperse plentifully that something may 
stick) is the favourite document of the malicious Veteran — 
Like Ship-money ! Compare, Reader, the two transactions, 
and your sensibility will be severely tasked to repress the 
emotions of indignation. 

"The Proclamation binds no farther than it is legal — its 
legality is determinable, in the ordinary course of justice — it 
directs no method of compulsion to enforce a compliance from 
the people, nor gives any remedy to the Offi.cer, for the recovery 
of his dues, to which he is not entitled by the rules of 
Law — if legal, it is not oppressive — if not legal, the severest 
epithet that justice can admit, is, that it is useless to the 
Officer, though of some service to the people, in the restriction 
to which he is subjected. But the writs, for raising Ship- 
money, imposed a tax, derogatory from those most essential 



GOVERNOE EDEN's ADMINISTRATION. 59 

principles of Government, on which- the conservation of publick 
liberty depends. These writs levied about £200,000 sterling, 
when nothing was due — they compelled payment by means the 
most rigorous ; by distress, or execution on the effects, and 
imprisonment of the people, who should oppose the levy, 
during the will and pleasure of a tyrant. The royal mandate 
imposed the tax, adjusted the proportion, and directed the 
collection of it — the arbitrary seizure of property, and the 
deprivation of personal liberty were employed to spread terror, 
and compel submission to a tyrant's will ; I say, tyrant, though 
the appellation may offend the principled delicacy of Independent 
Whigs, particularly characterized by their attachment to the maxvniy 
tJiat the King can do no ivrong, and the doctrine of divine inde- 
feasible hereditary right — a maxim and doctrine to which the 
refractory Tories, at the Revolution, offered such impious violence. 
Whigs, of whose instruction Cambridge cannot boast, whatever 
praise may be due to the documents of St. Omers, and the 
institution of billiard rooms and tipling houses — the former, 
the best seminary in the universe of tiie champions for civil 
and religious liberty, the latter, of the most finished j^^itterns 
of modesty, decorum, and animated elocution. King James 
the Second, to be sure, did no wrong, in attempting to destroy 
all the rights of the subject, civil and religious, and 3^et was 
cruelly driven into exile ; but let not the lamentations of the 
confederated Independent Whigs be too loud in deploring this 
melancholy event, as vulgar prejudice ranks the Revolution 
among the most glorious deeds, that have done honor to the 
character of Englishmen, and may be apt to consider the 
principles of our Independent IVhigs, as a basis too rotten to 
sustain the weighty superstructure of national liberty. There 
was a time, when the generous and spirited behaviour of one 
of the Confederates nearl}^ brought on a relentless persecution 
against all of the same religious profession. Unjust and 
merciless vengeance ! Had he alone been the martyr, the 
pangs of his sufferance would have been more than compen- 
sated by the glory of it ; but hard it would have been on those 
to suffer, who could have derived no consolation from a similar 



60 FIRST CITIZEN AND ANTILON. 

merit. After the experience of having nearly ruined the party, 
of whom the importance and powers of superior wealth, and 
superior talents, placed him at the head. — After the experience 
of greater benefits having been derived from his most implac- 
able enmity, than could have been from the utmost exertions of 
his most cordial friendship, (my allusion is sufficiently intelli- 
gible) what admirable firmness must that man have, who will 
persist in the same course. If actuated by the motive of the 
unhappy spirit, who feels some relief, in his torments, from 
the agonies of others, his persistence might be accounted for ; 
but this hypothesis must fail ; for miscarriage has ever attended 
his efforts to distress, and benefits redounded from his best 
concerted schemes to destroy — how forlorn his situation! 
tormented when inactive — disappointed when active — incapa- 
ble of relief, but from anothers pangs, and incapable to inflict 
them. 

"As the full efficacy of the Proclamation, for the very purpose 
professed, that of preventing extortion, depends upon the 
authority to settle the fees, because without the standard, or 
measure to ascertain what is due, there can be no extortion in 
taking aiuj sum, for a service performed ; how amazingly 
strange is it to say, that the Proclamation was defended upon 
principles different from what is professed, when the argu- 
ments, applied in defence of the Proclamation, were calculated 
to prove the authority to settle the fees, without which the 
Proclamation, for the reasons assigned, would be ineffectual as 
a preventive of extortion. The Governor's Proclamation was 
*a measure that cost King Charles his crown and life, which 
the advisers of it have defended upon principles, more 
unjustifiable and injurious than those, under which it was 
pretendedly palliated. You see. Sir, I adopt the maxim of 
the British constitution, the King can do no wrong. I impute 
all the blame to his Ministers, who, if found guilty, and 
dragged to light, I hope will be made to feel the resentment 
of a free people.' — I must refer the reader to the Gazette of 
the 4th instant, for this most curious specimen of the political 
tenets of these modern Independent Whigs, of the extent of 



GOVERNOR EDEN's ADMINISTRATION. 61 

their knowledge, and the force of their expression. It would 
be hard indeed if his Majesty was chargeable with having 
done wrong, because the Governor of Maryland, with the 
advice of his council, issued a proclamation to prevent the 
extortion of Officers. There is no occasion to have recourse 
to any maxim of jurisprudence for his vindication, common 
sense will at once acquit him — there can be no difficulty in 
finding out his Ministers, the Governor and Council are answer- 
able in this character. He cannot disavow an act to which his 
signature is affixed. The indignation, and contempt, such 
impotent vehemence and futile arrogance are wont to excite, 
make it difficult to speak without perplexity. — The Governor, 
however, in the complimental address of one of the Confed- 
erates to himself, and his coadjutors, is raised to the Throne, 
and graced with the attribute of indelible rectitude. Base 
prostitution ! Is their patriotism come to this ? Did they 
mean by this fawning servility to expiate all the wanton indig- 
nities they had offered him '? After he had most expressly 
declared that 'what he should judge to be right and just, would 
be the oidy dictate to determine his conduct, ' they represented 
that he was blindly led by others, and not determined by his 
own judgment, and then add an insult to his understanding, 
by such extravagant adulation, as the meanest debasement 
would blush to offer, delicacy must nauseate, and common 
sense resent with indignation, especially after having been 
honoured by an approbation of his conduct, he is ambitious to 
deserve, and the highest he can receive. They know not him 
whom they thus treat. 

"Cui male si palpere, recalcitrat undique tutus — so insepa- 
rable are insolence and meanness — ' had ' he relied upon his 
own manly judgment, &c. 

' Eden had been a little God below. ' 

" With what propriety did they choose the signature. Inde- 
pendent Whigs ? What vast knowledge must these men have, 
who are acquainted with the manners of the Ancients, ivJio to 
be sure never made use of invectives in their political contests, as 



-62 FIRST CITIZEN AND ANTILON. 

well as tliej are with the principles of Whiggism ? A knowl- 
edge which neither Oxford nor Cambridge ever taught. 

" The idea of tax having been annexed to the regulation of 
the fees, though without any provision for their payment, other 
than what the Law, on the very grounds of its legality, should 
afford, it may not be amiss to examine the propriety of it. If 
the idea be proper, then fees can be settled, in no case, except 
by the Legislature, because it requires such authority to lay 
a tax ; but the House of Lords, the House of Commons, the 
Courts of Law and Equity in Westminster Hall, the Upper 
and Lower Houses of Assembly, have each of them settled 
fees. If such settlement be legal, then the idea is improper ; 
if illegal, it is strange, indeed, that it should have so generally 
obtained. When fees have not been settled by an Act of 
Assembly, they have, for the most part, been settled by the 
authority of Government, so that the Proclamation in 1770 
was not the invention of any daring Ministers, now in being. 
The opinions of eminent Counsel, as well before the year 
1733, as since the year 1770, have been very fully given in 
favour of this authority, on a full state of the case, and in the 
latter instance, after a consideration of the arguments con- 
tained in the Address to the Governor, and his answer ; but 
the opinion of Counsel having been intimated, the following 
quotation from a pamphlet has been introduced as pertinent 
to the occasion : 'On a question of publick concernment, the 
opinions of Court Lawyers, however respectable for their 
candor, ought not to weigh more than the reasons adduced in 
support of them ; they have been all strongly marked with the 
same characters ; they have been generally very sententious, 
and the same observation ma}' be applied to all of them. 
They have declared that to be legal, which the Minister, for 
the time being, has deemed to be expedient. ' 

" You have, reader, already seen in the comparison between 
Ship-money, and the Governor's Proclamation, one instance of 
the extraordinary knack of the Independent Whigs at assimila- 
tion, and you will now be entertained with another. 



GOVERNOR EDEN's ADMINISTRATION. 63 

"The opinion respecting the Proclamation is on no point, 
which the Minister for the time being aims to establish. 
Opinions, in favour of the Proclamation, have been given at 
the different periods of 1732 and 1772, by eminent Counsel, 
not only unconnected, with, but distinguished by their opposi- 
tion to, Administration. Make the comparison, how striking 
the resemblance! — I shall not contend that the opinion of 
Counsel is conclusive in any case ; but presume to say, that it 
may have Aveight, as well on the affair of the Proclamation, as 
any other. And that they, whose sentiments coincide with the 
opinions of Counsel, eminent in their profession, and disin- 
terested on the question, are not fairly represented as engines 
of oppression, and enemies to their country. It would be a 
degree of arrogance, rather too excessive, even for the Con- 
federacy, expressly fo twoiv that every sentiment, and every 
measure opposite to their malignant and selfish views, ought 
to be treated with contempt, or received with abhorrence, and 
such only entitled to regard, as tend to promote them. The 
prudent (Dxi poUtich Ogle, notwithstanding the most violent 
opposition that ever a Governor of Maryland met with, to his 
measures, regardless of all the virulent abuse, with which he 
was attacked, acted steadily, and despised the railings, particu- 
arly, of such men, as he disappointed in their unreasonable, 
and arrogant expectations, by doing what he thought, justice 
and equity required. He was so well convinced of the authori- 
tative force of the Proclamation for settling the fees of Officers, 
that he expressly determined, as Chancellor, by a final com- 
pulsory decree, fees should be paid upon the authority, and 
according to the very settlement of the Proclamation. What 
will the Confederacy say to this? Did lie deserve 'infamy, 
death, or exile,' for giving an irresistible, conclusive force to 
the Proclamation? No, no, to be sure, not quite a punishment 
so severe, because the Independeid Whigs (Independe)d Whigs, 
risiim teiieafi^s) highly approve the British maxim, the ' King can 
do no wrong,' and therefore (the reasonable postidatum being 
admitted that a Governor is Kin.gJM.r. Ogle did no wrong; but 
without doubt, according to their admirable principles, if he 



64 FIRST CITIZEN AND ANTILON. 

had been Chancellor only, and not both Chancellor and Governor, 
he would have deserved death, etc. 

"In consequence of a commission issued by the Crown, 
upon the address of the British House of Commons, the Lord 
Chancellor of England, by the authurity of his station, and by 
and with the advice and assistance of the Master of the Rolls, 
ordered that 'the Officers of the Court of Chancery should 
not demand, or take any greater fees for their services in their 
respective offices, than, according to the rates he established, and 
that any Officer taking more should be punished as for a con- 
tempt; and that all persons might have notice of his regulation 
and restriction, his Lordship was pleased fui-ther to order the 
same to be forthwith printed and published.' An Address from 
the House of Commons to the King ; a commission from the 
King in pursuance of it ; an Order of the Chancellor settling 
the fees ; this Order printed and published, and, yet, the settle- 
ment of fees, a tax similar to Ship-money I ' passing strange ! ' 
The Members of the House of Commons, to be sure, ivere all 
bribed, or forgot the privilege they had so often and zealously 
asserted, or they would not have addressed the King to issue 
a Commission for taxing the subject. 

"Serjeant Hawkins, who was a man of experience in the pro- 
fession of the Law, and whose treatise of the Pleas of the 
Crown is in great estimation, has been so rash, or so great an 
enemy to liberty, as to say in print, that ' the Courts of Justice, 
in whose integrity the Law always reposes the highest confi- 
dence, are not restrained from allowing reasonable fees for the 
labour and attendance of their Officers ; for the chief danger 
of oppression is from Officers being left at liberty to set their oivn 
rates on their labour, and make their own demands ; but there 
can't be so much fear of these abuses, while they are restrained 
to known and stated fees, settled by the discretion of the 
Courts, which will not suffer them to be exceeded, without the 
highest resentment.' 

"What, Mr. Serjeant, have the Court's authority to tax the 
people, in a manner as arbitrary as Ship-money ? Shall they 
be allowed to do that, which brought King Charles to the 



GO\'ERNOK EDEN's ADMINISTRATION. 65 

block? How would the learned gentleman be confounded at 
this expostulation, if alive to hear it '? ' The general wel- 
fare of this jjrovince has been sacrificed,' say the Confederates, 
'out of tenderness and regard to a few, to preserve lohose sal- 
aries from diminution, the fortunes of all their countrymen 
have been suffered to be impaired.' What say Ye to this 
imputation. Ye who nnanimouslij dissented to the Inspection 
Bill? Ye will hardly acknowledge the iinputed motive of 
your conduct, as a compliment to your understanding, candor, 
or spirit. A diminution, and that very considerable, of all 
fees was readily agreed to, in the election given to all persons 
to pay in money or tobacco, and this election was extended to 
the Clergy's dues ; but the Bill failed. I might safely refer 
the question to the opinion of my cotmtrymen, whether, if an 
Inspection Law had passed, upon the terms offered the Ses- 
sion before last, the general welfare of this province would 
have been sacrificed, and all their fortunes impaired ? If not, 
what must they think of the principles of such profligate 
incendiaries, as these Confederates are? Nearly the same 
alteration of fees was proposed heretofore, without giving an, 
election to the people to pay in money, or tobacco, but it failed. 
By whom was all power engrossed at that period? Whose 
influence, then, put to hazard the passing of the Inspection 
Law, and prevented the diminution of fees, in every res2)ect ? 
Were the fortunes of all the people of Maryland impaired by 
the Inspection xA.ct, that then passed, though fees were not 
diminished by it, and the makers of tobacco were obliged to 
pay in tobacco ? Did this Law, which allowed of no diminu- 
tion of fees, and compelled the planters to pay in tobacco, 
pass before, or siinr the unfortunate iera, when somebody was 
thrust into office, that all power might centre in one family? 
From this insinuation, as well as other touches in the compo- 
sition of the Confederates, I am led to suspect, that they have 
received instruction from the Essay on Diabolism. 

" ' Some aukward epithets, with skill apply'd. 

Some specious hints, that something seem to hide, 
Can right, and wrong most cleverly confound, 
Banditti like, to stun us, e'er they wound.' 



66 FIRST CITIZEN AND ANTILON. 

" But whatever may be the demedts of the father, what has 
the soil done to incur the displeasure of the Confederates, that 
thev already prepare to malign him? As one of the Confed- 
erated Independent Whigs can hardly entertain any views of 
personal promotion, to what black passion shall we charge his 
dislike ? Age must have cooled the ardor of ambition ; but 
malignity will not cease 'till life's reck'ning shall forever 

cease.' 

" ' Wash the ^-Ethiop white, 
Discharge the leopard's spots, turn day to night, 
Controul the course of nature, bid the deep 
Hush, at thy Pygmy voice, her waves to sleep ; 
Perform things passing strange, yet own thy art 
Too weak to work a change, in such an heart. 
Thai envy, which was woven in thy frame 
At first, will to the last remain the same. 
Reason may droop, may die ; but envy's rage 
Improves by time, and gathers strength from age. 
What could persuade thee at thy time of life, 
To launch afresh into the sea of strife V ' 

"What means the other? Is he anxiously looking forward 
to the event, most devoutly wished for, when he may shake off 
his fetters and dazzle the world with the splendour of his 
talents, and the glory of his political achievements, 

'• ' And save his country, whilst he — serves himself ? 

"Let not Sempronius suspect this — to be outwitted by one, 

whom, from his soul, he despises, after haying 

" ' Mouth'd at Caesar 'till he shook the senate, 

Cloath'd his feign'd zeal in rage, in fire, in fury,' 

would drive him to desperation irremediable. 

"Officers ought to be restrained, and ought not lawyers? 

If the former, without restriction, may have it in their power 

to oppress, may not the latter also ? I mean not such a 

restriction, as the Act of Assembly now in force imposes, an 

Act which is become a dead letter from its illiberal allowance 

in causes of diflftculty in the superior courts ; nor do I mean 

such a restriction as a reasonable Lawyer would object to — I 

well know there are men of the profession, who need not the 

restriction of positive Law to keep them within the bounds of 



GOVERNOR EDEN's ADMINISTRATION. ♦ 67 

moderatiou ; but since, as Blackstone observes, it may happen 
that profligate, and illiberal men, may sometimes insinuate 
themselves into the most honourable professions, to check 
their rapacity, and insolence is not unworthy of the legislative 
attention. 

" One may easily imagine that a client, drained of his money, 
frequently attending with humility to have his business done, 
insulted with insolence when his pockets are empty, and return- 
ing home with disappointment, and chagrin, thinks it hard to 
be abused, because he cannot answer the demand of "Teeth 
3Ioneii, and heartly wishes the Legislature would extend their 
care, and j^revent the extortion of the Lawyer, as well as the 
Officer. 

"What do the Confederates mean 'by dragging to light — 
made to feel the resentment of a free people — endeavouring to 
set the power of the supreme Magistrate above the Laws — 
punished with infamy, exile, or death — dread of such fate?' 

" Have they any other measure, besides the Governor's 
proclamation, to arraign as an attempt to set the supreme 
Magistrate above the Law V If they have, let them be precise 
in their charge, and give me another opportunity of showing 
them, stripped of disguise, to be, what they are. Has their 
malice, which all the coloiirs of language are too feeble to 
express, so extinguished every spark of the little sense, 'niggard 
nature spared them,' as to beget a sanguine hope, that the free 
people of Maryland will become a lawless mob at their instiga- 
tion, and be the dupes of their infernal rage ? When nature's 
work is so equivocal that we are at a loss to determine, whether 
she intended to exhibit a man for human humiliation, or a 
monkey for human diversion, we are inclined to pity, or to 
laugh, as the object happens to strike the present disposition ; 
but when we behold the animal with the torch, or firebrand, 

* A tribute exacted by some Turkish tyrants of the poor peojjle, wliom 
they plunder of provision, for the trouble of using their Teeth in eating 
it. Such plunders vehemently declaim against regular dues, that there 
may be the more for themselves to spoil. 



68 FIRST CITIZEN AND ANTILON. 

bent on mischief, we should dread its furj, if not out of the 
reach of it. 

" One word more to the Confederates, or Independent WhigSy 
if they choose the signature to their own panegyrick on their 
own excellencies, and then farwel for the present. 

"If the Governor, in issuing the proclamation, acted on a 
conviction of its propriety (and he has most expressly declared, 
he did) he derives a satisfaction, and honour from his firm, 
and open avowal, which he will hardly be induced to relinquish 
and shelter himself under the infamous doctrine of your most 
servile adulation — ' that a Governor is a King, and can do no 
wrong.' *So rash is your solicitude to make your court, that 
you do not perceive the affront you offer, even, to his veracity 
in the very nature of your address. Such patriotism now it is 
explained, to be sure, must command the utmost confidence of 
the free people of Maryland. 

"What would John Hampden, if alive here, say to suck 
patriots '? 

"With what indignation must the confederated Independent 
Whigs be inflamed, when informed that fees in England have 
been settled by the courts, that the doctrine has been there 
advanced, 'no OJicer is hound to act unless his fee be paid; ^ 
that a Chancellor has ' sfoppd the rery hearing of a cause, 
because fees icere not paid;' and that a Chief Justice has 
declared, even from the bench, that a suitor is ' liahle to an 
Attachment of Contempt, on his refusal to pay fees ? ' Such 
Tyranny has, verily, been practised without any dread of 
Infamy, Exile, or Death. O Tempora, O Mores." 

Antilon. . 

*By statute, if a Governor, or deputy Governor of any plantation, or 
colony, be guilty of oppressing any subject within his government, or any 
other crime, or offence contrary to the Laws of the Realm; such oppres- 
sion, etc., shall be enquired of and determined in the Court of King's 
Bench, or before Commissioners assigned by the Crown, and such punish- 
ments inflicted as are usually inflicted for offences of the like nature com- 
mitted in England — and yet the Confederates apply the maxim, "the'.King 
can do no wrong," to a Governor — what gross ignorance, what miserable 
flattery ! 



GOVERNOR EDEN's ADMINISTRATION. 69 



CHAPTER 8. 

SECOND LETTER OF FIRST CITIZEN. 



1773. Charles Carroll, of Carrollton, and Daniel Dulanv 
were now at arms against each other in the exciting field of 
forensic and political discussion. Both were men of legal 
ability and of European culture. Carroll, at this time, was 
thirtj-six years old, Dulany had reached fifty-two, and was in 
full possession of all his "ripened powers." If Dulany had 
had experience in the weighty aflfairs of state, Carroll did not 
enter the lists entirely unequipped. Culture, travel, legal 
learning and heredity were his, with the leisure of wealth and 
experience in professional oratory, and all his faculties impelled 
to exercise their greatest ability by a high spirit inflamed to 
the intensest opposition by the frequent attempts of "the 
powers, that" were, against his own personal rights and the 
liberties of his fellow citizens. This was, however, his first 
public presentation to the province ; nor, indeed, was he 
yet known to the people at large. The faithful editor of 
the Gazette guarded the authorship of the letters with sacred 
sanctity. Dulany was irritated from the start. His anger 
centered upon the authors of the communications to which he 
was replying, who were charged to be a band of "Confederates 
or Independent Whigs." One of these he singles out and 
speaks of him thus — "After the experience of having nearly 
ruined the party, of whom the importance of powers of 
superior wealth, and superior talents, placed him at the head — 
After the experience of greater benefits having been derived 
from his most implacable enmity, than could have been from 
the utmost exertions of his most cordial friendship, (my 
allusion is sufficiently intelligible) what admirable firmness 
must tliat man have, who will persist in the same course. If 



70 FIRST CITIZEN AND ANTILON. 

actuated by the motive of the unhappy sjDirit, who feels some 
relief, in his torments, from the agonies of others, his persist- 
ence might be accounted for ; but this hypothesis must fail ; 
for miscarriage has ever attended his efforts to distress, and 
benefits redounded from his best concerted schemes to destroy — 
how forlorn his situation ! tormented when enactive — dis- 
appointed when active — incayiable of relief, but from another's 
pangs, and incapable to inflict them." 

To this Mr. Carroll in his second letter, says : "The First 
Citizen avers (and his word will be taken sooner than 
Antilon's) that he wrote the dialogue between the two citi- 
zens published in the 3Iari/Jat)d Gazette of the 4th instant, 
without the advice, suggestion or assistance of the supposed 
author or coadjutor." 

Carroll had, as an adversary, one whom victory had rarely 
failed to crown, and even repulse by whom, could not dis- 
credit. Dulany was the equal of Carroll in social position 
and legal education, — his superior in age and familiarity with 
public affairs, since Dulany, as his opponent, in one of his 
letters taunted Carroll with being a disfranchised citizen on 
account of his Roman Catholic faith, and could not take part 
in political and legislative matters. Dulany had the polish of 
daily profound research ; he knew the history and had the 
precedents of the province at his flngers' ends ; he was a 
lawyer whose opinions even judges at home and abroad sought 
to aid them in the elucidation of intricate cases. Joined to 
these elements of preparation, Dulany was a protestant, in an 
almost exclusively protestant government, and he argued to 
protestant auditors. Carroll bore the odium of an outlawed 
religion, was under the band of political disfranchisement for 
adhering to its faith, and to the sneers of his political oppo- 
nents for being a Roman Catholic " could only wield the 
weapons of a brave spirit and the accomplishments of a culti- 
vated intellect." Thus equipped, the two gladiators entered 
the arena of the public press. 

Mr. Carroll, writing under the })0)i de jj?iry??e of First 
Citizen took his press title from the character, represented 



GOVERNOK EDEN's ADMINISTRATION. 71 

Diilaiiy's first letter, who assumed the position of defending 
the people's rights and in opposing Governor Eden's procla- 
mation. Dulany's journalistic name is more obscure. The 
word "Antillon " is a Spanish surname ; but no member of 
the family Antillon appears to have acquired such fame at 
that period, 1773, to warrant the use of the name as a news- 
paper cognomen. 

The word "Antillon," the nearest approach to "xAntilon," is 
found alone in the Spanish dictionary, and is defined by 
D. Roque Barcia as "Especie de emplasio astringeiife,'" a specie 
of stringent plaster. Mr, Richard J. Duvall, clerk in the 
Naval Academy Library, after much diligent search by others 
as well as himself, was the first to find the word "Antillon." 
The author had the valuable aid of three Spanish scholars — 
Professor A. N. Brown, Librarian of the Naval Academy ; 
Professor P. J. des Garennes, and Assistant Professor C Y, 
Cusachs, instructors at the Naval Academy. 'The combined 
information gathered from them is — that the word "Antillon" 
is never spelled with one "1;" that the second "1" gives 
the sound of "yon" to the letters "on," where they are 
finals ; and that, probably, to anglicise "Antillon," Mr. Dulany 
dropped one " 1." Prof, des Garennes agrees with the author 
that Mr. Dulany, possibly, depended on his memory, without 
consulting the dictionary, and spelled the word incorrectly. 
As it stands, the weight of evidence suggests, at least, that Mr. 
Dulany intended to use the word "Antillon," and that he had 
a significant meaning in applying the name to his communica- 
tion — it \\as a stinging, drawing plaster, which would draw 
the poison, or virus, from the meritricious arguments of. First 
Citizen. The use of the word, by Mr. Dulany, would show a 
profound knowledge of the Spanish lanuguage, as the word 
Antillon is rare and now almost obsolete. This is anotlier 
evidence of the broad culture of the most distinguished lawyer 
of Colonial America. 

The second letter of Mr. Carroll appeared iu the Gazette of 
March 11th. It said: 



72 FIRST CITIZEN AND ANTILON. 

" Though some counsellors wiU he found to have contributed 
their endeavours, yet there is one, ivho challenges the infamous 
pre-eminence, and ivho by his capacity, craft, and arbitrary- 
counsels,* is entitled, to the first place among these betrayers of 
their country.'' 

Hume's Hist, of Eng., Vol. V., p., 243, 4 to. edit. 

" The most despptic counsels, the most arbitrary measures, 
have always found some advocates, to disgrace a free nation : 
when these' men, in the room of cool, and dispassionate reason, 
substitute virulent invective, and illiberal abuse, we ma^^ fairly 
presume that arguments are either wanting, or that ignorance 
and incapacity know not how to apply them. 

" Considering the known abilities, as a writer, of the person 
pointed out to be the principal adviser, of the Proclamation, 
considering too, his legal and constitutional knowledge, we can 
hardly suppose, if solid reasons could be adduced in support, 
or extenuation of that measure, but what they would have been 
urged, with all the force of clear, nervous and animated 
language. There will not, I amagine, be wanting lawyers, to 
undertake a refutation of Antilons legal reasoning in favour of 
the Proclamation ; I shall therefore examine his defence of it, 
rather upon constitutional principles, and endeavour to shew, 
that it is contrary to the spirit of our constitution in particular, 
and would, if submitted to, be productive of fatal consequences : 
but previous to my entering upon this enquiry, it will be neces- 
sary to expose the 'shameless effrontery,' with which Antilon has 
asserted facts, entirely destitute of truth, and from which he 
has taken occasion to blacken the character of a gentleman, 
totally unconnected with the present dispute. Who that gentle- 
man is, no longer remains problematical ; the place of his educa- 
tion, and his age, have been mentioned, to fix the conjectures 
of the publick, and to remove all doubt. ' He, instigated by 
inveterate malice, has invented falsehoods for i)icorrigible folly to 
adopt, and indurated impudence to propagate.' Of this Antilon 

*The words in small Roman letters are substituted instead of tlae words 
enterprise, and courage, made use of by the historiau. 



GOVERNOE EDEN's ADMINISTRATION. 73 

has confidently accused him ; but upon what proof ? on no 
other than his own conjecture. The first Citizen avers (and 
his word will be taken sooner than Antilons) that he wrote the 
dialogue between two citizens, published in the 3Iaryland 
Gazette of the 4th instant, without the advice, suggestion, or 
assistance of the supposed author or coadjutor. But the first 
Citizen and the Indej)endent Whigs, are most certainly confed- 
erated ; they are known to each other ; an assertion this, 
Antiloi), equally rash and groundless with your former. Why 
do you supjjose this confederacy ? From a similitude of senti- 
ments with respect to your conduct, and Proclamation? If so, 
then indeed are nine-tenths of the people of this province con- 
federated with the first Citizen. The Independent Whigs, how- 
ever, as it happens, are unknown to the first Citizen ; of their 
paper he had not the least intelligence, till he read it in the 
Marijloiid Gdzctte of the lltli instant : he now takes this oppor- 
tunity of thanking those gentlemen, for the compliments, which 
they have been pleased to bestow on his endeavours, to draw 
the attention of the publick, from other objects, to the real 
authors, or rather author of all our evils. 

" With what propriety, with what justice can Antilon 
reproach any man with malignity, when, stimulated by that 
passion, he accuses others without proof of being confeder- 
ated with the first Citizen, and from mere suspicion of so 
treasonable a confederacy, vomits out scurrility and abuse 
against imaginary foes ? Not content with uttering false- 
hoods, grounded solely on his own presumption, he has 
imputed the conduct oi Ume of the confederates !' to a motive, 
which if real, can only be known to the great searclier of 
hearts. This confederate is represented '«s wishing most 
devoutly' (a pious and christian insinuation) for an event of 
all others the most calamitous, the death of a most loved 
parent ; ungenerous suggestion ! unfeeling man ! do you really 
entertain such an opinion of the son? Do you desire that 
the assigned cause of the imputed wish should have its 
intended effect, create uneasiness, a coolness, or distrust? 
What behaviour, what incident, what passage of his life, war- 



74 FIRST CITIZEN AND ANTILON. 

rant this jour opinion of the son, supposing it to be real "? 
That thej have always lived in the most perfect harmony, 
united by nature's strongest ties, parental love, filial tender- 
ness, and duty, envy itself must own. Tliat father, whose 
death the son devoutly wishes for, never gave him cause to 
form a wish so execrable ; he has been treated with the utmost 
affection, and indulgence by the father ; in return for all that 
tenderness and paternal care — 

" ' Him, let the tender office long engage, 

To rock the cradle of reposing age ; 

With lenient arts extend a father's breath, 

Make languor smile, and smooth the bed of death.' 

— Pope. 

"T cannot conceive what 'ilie generous and spirited helmviour 
of one of the confederates' (who by the bye is no confederate) 
on a former occasion, has to do with the present question, 
unless to divert the attention from the subject, or to introduce 
a specimen of satire, and falsehood prettily contrasted in 
antitheses. The period, I confess, runs smooth enough ; but 
Antilion, let me give you a piece of advice, though it comes 
from an enemy, it may be useful ; whenever you mean to be 
severe, confine yourself to truth ; illiberal calumny recoils 
wTith double force on the calumniator. An expression of the 
first Citizen has been construed into a 'prejjaration' to malign 
the minister's son ; if this intention could be fairly gathered 
from the words inserted in the note (A) (and there are no other 
to give the least colour to the charge) it would cause the first 
Citizen unfeigned concern. To wipe off the imputation, I 
must beg leave to refer the reader to the dialogue published 
by the first Citizen; he will there see, that the 2d Citizen 
intimates, a confidence ought to be placed in our ministers, 
because they are men of proj^erty, 'aud have as deep a stake in 
the safety of the Consfitidion as any of us.' In answer to this 
reasoning, the first Citizen observers, that a minister's wealth 

(A) — Hopes may be entertained that the yood thing like a precious jewel 
will be handed down from father to son. 



GOVERNOR EDEN's ADMINISTRATION. 75 

is not always a security for his honesty ; because, to increase 
that wealth, to maintain his seat, and to aggrandize his own, 
he may be tempted to enlarge the powers of the crown, (the 
first Citizen speaks generally) more especially should he (the 
minister) have unj expectation of transmitting his post to one 
of his own family, to his son for instance. ' It has been the 
maxim (says a judicious historian) (1) of English princes 
whenever popular leaders encroach too much on royal authority, 
to confer offices on them, in expectation that they will after- 
wards become more careful, not to diminish that i^ower, which 
has become tlieir own. ' It is not even asserted, that the 
minister does actually entertain a hope of securing his office 
to his son, but that, possibly, he may entertain such a hope. 
It may be impolitic in the supreme magistrate, to grant offices 
to many of, and to continue them in the same family, but it is 
natural for the head of that family, to wish it ; if even to 
wish to transmit an office to his son, should be thought cul- 
pable in the father, yet still is the son exempt from all blame. 

" I must answer a question or two, put by A)itilo)>, before I 
go into an examination of his reasons, in support of the 
Proclamation, that the argument may be as little interrupted, 
and broke in u23on, as possible, by topics foreign to that 
enquiry. Ant'don asks, ' What do the confederates mean (he 
should have said what does' the first Citizen mean) by drag- 
ging to light — made to feel the resentment of a free people — 
endeavour to set the power of the supreme magistrate above the 
laws — dread of such fate.' — Answer : — By ch'fK/yhxj to light, 
nothing more was meant, than that the house of delegates 
should again endeavour, by an humble address to the 
Governor, to prevail on him to disclose the ill adviser, or 
' those ill advisers ivho have most darinr/h/ presinned to tread on 
the invalaahle rights of the freemen of Marylaiid.' — ' Made to 
feel the resentmeid of a free people,' may need a little explana- 
tion ; the sense of the subsequent (quotations, is sufficiently 
obvious ; if the real adviser, or advisers, of the Proclamation, 

(1) Hume. 



76 FIR8T CITIZEN AND ANTILON. 

could be discovered, in my opinion (I do not mean to dictate, 
and to prescribe to the delegates of the people) they ought, in 
justice to their constituents, humbly to address the Governor, 
to remove him, or them, from his counsels, and all places of 
trust, and profit, if they be invested with such, not merely as 
a punishment on the present transgressor, or transgressors, 
but as a warning to future counsellors, not to imitate their 
example. I have dwelt the longer on the meaning of the 
words — ' inade to feel the resentment of a free people,' because I 
perceive i^usillanimity and conscious guilt have inferred from 
the expression, 'a sanguine hope in the 'confederates,' that the 
free people of Maryland will become a lawless mob at their 
instigation, and be the duj^es of their infernal rage.' 

" Sl^ep in peace, good Antllon, if thy conscience will permit 
thee ; no such hope was conceived by, a thought of the sort 
never entered the first Citizen's head, nor (as he verily believes) 
of any other person. The first Citizen rejects with horror, and 
contempt, the cowardly aspersion. But should a mob assemble 
to pull down a certain house, and hang up the owner, methinks, 
it would not be very formidable, when headed and conducted by 
a monkey, against a chief of such sjiirit and resolution. Sarcasms 
on personal defects, have ever been esteemed the sure token of 
a base and degenerate mind ; to possess the strength and 
graces of your person, the gentleman alluded to, would not 
exchange the infirmities of his puny frame, were it, on that 
condition, to be animated by a soul like thine. 

" I have at length gone through the painful task, of silencing 
falsehood, exposing malice, and checking insolence. The 
illiberal abuse so plentifully dealt out by Antilo)i, would have 
been passed over with silent contempt, had he not so inter- 
woven it with positive assertion of facts, that the latter could 
not be contradicted, without taking some notice of the former. 

"I shall now exsiimme Ant Hon' s reasons in justification of the 
Proclamation, and after his example, I shall first compare the 
two transactions, the Proclamation , and the assessment of ship- 
money. — That the latter was a more open, and daring violation 



GOVERNOR EDEN's ADMINISTRATION. 77 

of a free constitution (B) will be readily granted ; the former, 
I contend, to be a more disguised, and concealed attack, but 
equally subversive, in its consequences, of liberty. — Antilons 
account of the levy of ship-money, though not quite so impar- 
tial as he insinuates, I admit in the main to be true — 'The 
amount of the whole tax was very moderate, little exceeding 
200,000 lbs ; it was levied upon the people with justice and 
equality, and this money was entirely expended upon the 
navy, to the great honour and advantage of the kingdom.' — At 
that period the boundaries between liberty and prerogative 
were far from being ascertained ; the constitution had long 
been fluctuating between those opposite, and contending inter- 
ests, and had not then arrived to that degree of consistency 
and perfection, it has since acquired, by subsequent contests, 
and by the improvements made in later days, when civil 
liberty was much better defined, and better understood. The 
assessment of ship-money received the sanction of the 
judges — ' After the laying on of ship-money, Charles, in order 
to discourage all opposition, had proposed the question to the 
judges, ' tvhefher in a case of necessity, for the defence of the 
Jcingdoni, he vtiyht not impose this taxation ; and ichether he was 
not sole jndije of the necessity.'' — These guardians of law and 
liberty, replied with great complaisance (reflect on this, good 
reader) ' that in a case of necessity, he might impose that taxa- 

(B) The most opeu and avowed attacks on libert}^ are not perhaps the 
most daugei ous. When rigorous means — " the arbitrary seizure of property 
and the deprivation of personal liberty are employed to spread terror, and 
compel submission to a tyrant's will " they rouse the national indignation, 
they excite a general patriotism, and communicate the generous ardor 
from breast to breast ; fear and resentment, two powerful passions, unite 
a whole people, in opposition to the tyrant's stern commands ; the modest, 
mild, and conciliating manner, in which the latent designs of a cr<(fiy 
minister come sometimes recommended to the publick, ought to render 
them the more suspected ^'' tinno Danaon (t domt ferentes ;^^ the gifts, and 
smiles of a minister should always inspire caution, and diffidence. There 
is no attempt, it is true, in the Proclamation "to subject the people indebted 
to the officers for services performed to any execution of their effects or 
imprisonment of their persons — on any accounts — If the judges however 
should determine costs to be paid, according to the rates of the Proclama- 
tion, execution of a person's effects, or imprisonment would necessarily 
follow his refusal to pay those rates. 



78 FIRST CITIZEN AND ANTILON. 

tion, and that he was sole judge of the necessity.' The same 
historian speaking of that transaction conchides thus : ' These 
observations ahjne may be established on both sides. That 
the appearances were sufficiently strong in favour of the King, 
to apologize for his following such maxims ; and tlioi, publick 
liberty must be so precarious, under this exorbitant preroga- 
tive, as to render an opposition, not only excusable, but lauda- 
ble in the people.' — But I mean not to excuse the assessment 
of ship-money, nor to exculpate Charles, his conduct will 
admit of no good apology. 

"Now let us take a view of the Governor's Proclamation, 
advised by the minister, and of all its concomitant circum- 
stances. — A disagreement in sentiment, between the two 
branches of our legislature, about the regulation of officers' 
fees, occasioned the loss of the inspection law in the mouth of 
November, 1770. — Some proceedings in the land-office, had 
created a suspicion in the members of the lower house of that 
assembly then sitting, ' That the government had entertained a 
design, in case the several branches of the legislature should 
not agree in the regulation of officers' fees, to attempt estab- 
lishing them by Proclamation. ' To guard against a measure 
'iiurjirqxitible ifith the permanent security of property and the 
constitutional liberty of the subject, ' they in an address to his 
Excellency asserted, ' That could the}' persuade themselves, 
that his Excellency could possibly entertain a different opinion, 
they should be bold to tell him, that the people of this province 
will ever oppose the usurpation of such a right. ' To which 
address the Governor returned this remarkable answer in his 
message of the 20th day of November, 1770, 'That his lord- 
ship's authority had not yet interposed in the regulation of 
fees of officers, nor had he any reason to imagine, it would 
interpose in such a manner as to justify a regular opposition 

to it. ' (C) 

(C) From the words in the text, I think it is evident, the minister had 
at that very time determined on issuing the Prochamation ; should he 
afterwards be reproached with a breach of promise, he had his answer 
ready, the Proclamation was not issued in !<urh a mimner, as to justify a 
regular oppodtiou, it was only issued with a view to prevent the extortion 
of officers — for this reason I have called the minister's promise a seeming 

promise. 



GOVEllNOU EDEN's ADMINISTRATION. 79 

" Notvvitlistanding this declaration, a few days after the pro- 
rogation of that assembly, the Proclamation of the 26th day 
of November (the subject of the present controversy) was 
issued, contrary to a seeming promise given by the minister 
(for I consider the Governor's speeches and messages as 
flowing from his minister's advice) and contrary to the opinion 
entertained by the minister himself, of its legality. The 
accusation will not appear too rash, when we reflect on the 
abilities of the man, his experience, his knowledge of the law 
and constitution, and his late flimsy and pitiful vindication of 
the measure. He knew that a 'similar Proclamation pub- 
lished in the year 1733 had agitated and disjointed this 
province till the year 1747. The evils, which were thereby 
occasioned, ought strongly to have dissuaded a second attempt, 
to exercise such power.' Ant Hod has admitted this fact, and 
has attributed ' the most violent opposition that ever a Gov- 
ernor of Maryland met with ' to this very measure — ' He 
(Ogle) was so well convinced of the authoritative force of the 
Proclamation, for settling fees of officers, that he expressly 
determined, as Chancellor, by a final compulsorj- decree, fees 
should be paid upon the authority, and according to the very 
settlement of the Proclamation,' which of his own will and 
mere motion he had pre-ordained as Governor. 

" What is the meaning of all this in plain Ei]glish ? Why, 
that Ogle made himself both judge and party ; like the French 
King, he issued out his edict, as a law, which he inforced in 
his OAvn court, as judge. I am unwillingly, and unavoidably 
drawn into the censure of a man, who by his subsequent con- 
duct, which was mild and equitable, fully atoned for the 
oppressions (shall I call them errors) of his former adminis- 
tration. 

" AittHoii asks, 'What did he (Ogle) deserve, infamy, death, 
or exile?' No, not quite so severe a punishment, Aiitilon; he 
only deserved to be removed from his government, and not 
even that punishment, if he was directed, advised and governed 
by such a minister as thou art; for in that case, the disgrace, 
and removal of the mintster would have been sufficient, and 



80 FIRST CITIZEN AND ANTILON. 

would probably have restored ease, security, and happiness to 
the people. But if Eden should follow Ogle's example, what 
then? Eden is a Governor, a Governor is a King, and a King 
can do no wrong, ergo, a Governor may cut the thrc^ats of all 
the inhabitants of Maryland, and then pick their pockets, and 
will not be liable to be punished for such atrocious doings ; 
excellent reasoning! exquisite wit and humor! If you, Antilon, 
should still be hardy enough, to continue to inspire the same 
counsels, which have already set this province in a flame, and 
the Governor, when warned, and cautioned against your per- 
nicious designs, should still listen to your advice, in opposi- 
tion to the inclination and wishes of the people, over whom he 
has the honour to preside, I confess, I should be one of those, 
who would most heartily wish for his removal ; does this look 
like flattery, Aid'don? I scorn the accusation. The first Citizen 
has always treated his Excellency with that respect, which his 
station commands, and with that complaisance, which is due 
from one gentleman to another ; to flatter, or to permit flattery, 
is equally unbecoming that character; Antilon. accuses the 
confederates, of fawning servility, extravagant adulation, and the 
meanest dehasenient ; yet this very man is not entirely exempt 
from the imputation of flattery — 'They know not the man 
whom they thus treat.' 

Cui, 'male si palpere, recaJciirat undique tutuH 

was an artful compliment paid by a courtly poet to the tyrant 
Augustus. — Ye, Antilon, I know the man; I know him to be 
generous, of a good heart, well disposed, and willing to pro- 
mote, if left to himself, the happiness and welfare of the 
province ; but youthful, unsuspicious, and diffident of his own 
judgment in matters legal and political (P) failings (if they 

(P) — It cannot be supposed that the King can have a thorough knowl- 
edge of every department in his kingdom ; he appoints judges, to inter- 
pret, and to dispense law to his subjects; ministers to plan, and digest 
schemes of policy, and to conduct the business of the nation ; generals, 
and admirals, to command his armies and fleets ; over all these he has a 
general superintendency, to remove, and punish such as from incapacity, 
corruption, or other misdemeanors may be unfit, and unworthy of the trust 
reposed in them — "the King cannot exercise a judicial office himself, for 



GOVERNOR EDEN's ADMINISTRATION. 81 

deserve the name) that have caused him to repose too great a 
confidence in i/ou ; from this opinion of the man, from a 
persuasion of his good intentions, I was induced to apply to 
him, the maxim of the British constitution, 'the King can do no 
wrong,' which you have so wittily, and humourously ridiculed. 
The Governor is no King ; wonderful discovery ! Who said 
he was? You comprehend the full force, and justice of the 
application, and ijou best know the reason of it ; in order to 
elude, and defeat its aim, you afiect to be witty, and not to 
take my meaning. You want to shelter yourself under the 
protection of the Governor, and to draw him, and all the 
Council, into a justification of measures peculiarly yours, by 
endeavouring to make them responsible for your coivnsels. 
•There can be no difficulty in finding out his (the King's) 
ministers ; the Governor and Council are answerable in this 



though justice and judgment flow from him, yet he dispenses them by his 
ministers, and has committed all his judicial power to dillerent courts; 
and it is highly necessary for his people's safety he should do so, for as 
Montesquieu justly observes — There is no liberty if the power of judging 
be not separated from the legislative, and executive powers. Were it 
joined with the legislative, the life and liberty of the subject would be 
exposed to arbitrary controul, for the judge would then be legislator; 
were it joined to the executive power, the judge might behave with all the 
violence of an ojypresxor." 

" Here the Governor, who exercises the executive and a share of the 
legislative power holds and exercises also one of the most considerable 
judicial oflices — for he is chancellor, a jurisdiction, which in the course of 
some years, may bring a considerable share of the property of this 
country, to his determinations." The Governor is so well satisfied of 
wanting advise, that in determining causes of intricacy, he always chuses 
to have the assistance of some gentleman, who from study, and a knowl- 
edge of the law, may be presumed a good judge, and able to direct him in 
cases of difficulty and doubt. He has recourse to the advise of his council 
in all matters of publick concernment ; it is therefore highly probable he 
took the advise of some, or of one in the council before he issued the 
Proclamation. It is well known, that in England the prime minister 
directs and governs all his Majesty's other ministers; in Charles the 
Ilnd's time the whole care of Government, was committed to five persons, 
distinguished by the name of the Cabal : the other members of the privy 
council were seldom called to any deliberations, or if called, only with a 
view to sane appearurtce>i. 
6 



82 FIKST CITIZEN AND ANTILON. 

character ; he cannot disavow an act, to which his signature is 
affixed.' Have not many Kings of England revoked, and 
cancelled acts, to which their signatures were affixed? Have 
not some kings, too, at the solicitation of their parliaments, 
disgraced ministers, who advised these acts, and affixed to 
them the •foyal signature '? The Governor is improperly called 
the King's minister ; he is rather his representative, or deputy ; 
he forms a distinct branch, or part of our legislature ; a bill 
though passed by both houses of assembly, would not be law, 
if dissented to by him ; he has therefore the power, loco Begis, 
of assenting, and dissenting to laws ; in him is lodged the 
most amiable, the best of powers, the power of mercy ; the 
most dreadful also, the power of death. A minister has no 
such transcendent privileges — To help, to instruct, to advise is 
his province, and let me add, that he is accountable for his 
advice to the great Council of the people ; upon this principle, 
the wisdom of our ancestors grounded the maxim, 'The King 
can do no wrong.' They supposed, and justly, that the care 
and administration of government would be committed to 
ministers, whom, abilities, or other qualities had recommended 
to their sovereign's choice ; lest the friendship and protection 
of their master should encourage them to pursue pernicious 
measures, and lest they should screen themselves under regal 
authority, the blame of bad counsels became imputable to 
them, and they alone were made answerable for the conse- 
quences ; if liable to be punished for male administration, it 
was thought, they might be more circumspect, diligent, and 
attentive to their charge ; it would be indecent and irreverential 
to throw the blame of every grievance on the King, and to be 
perpetually remonstrating against majesty itself, when the 
minister only was in fault. The maxim however admits of 

limitation. 

Est inodus in rebus ; sunt certi denique fines, 
Quos ultra, citraque, nequit consisiere rectum. 

" Should a King, deaf to the repeated remonstrances of his 

people, forgetful of his coronation oath, and unwilling to 

submit to the legal limitations of his prerogative, endeavour to 

subvert that constitution in church and state, which he swore 



GOVERNOR EDEN's ADMINISTRATION. 83 

to maintain, resistance would then not only be excusable, but 
praiseworthy, and deposition, and imprisonment, or exile, 
might be the only means left, of securing civil liberty, and 
national independence. Thus James the second, by endeav- 
ouring to introduce arbitrary power, and to subvert the estab- 
lished church, justly deserved to be deposed and banished. 

*' The revolution, which followed, or rather brought on 
Jame's abdication of the crown, 'is justly ranked among the 
most glorious deeds, that have done honour to the character 
of Englishmen ' In that light the first Citizen considers it ; 
and he believes the Independent Whigs entertain the same 
opinion of that event, at least, nothing appears to the contrary, 
save the malevolent insinuation of Antilon. It is high time to 
return to the Proclamation ; your digressions, Anfiloii, which 
have occasioned mine, shall not make me lose sight of the 
main object. 'It is not to be expected that any man will bear 
reproaches without reply, or that he, who wanders from the 
question, will not be followed in his wanderings, and hunted 
through his labyrinths.' We have seen, the Proclamation was 
apprehended sometime before its publication, and guarded 
against by a positive declaration of the lower house — ' Tfte, 
people of this province will ever oppose the usurpation of such a 
right.' Nevertheless our minister, regardless of this intima- 
tion, advised the Proclamation. It came out soon afterwards 
cloathed with the specious pretence of preventing extortion in 
oificers. I shall soon examine the solidity of this softening 
palliative. 

"In a subsequent session, it was resolved unanimously by 
the lower house, ' to be illeyul, arbitrary, unco)istituiio>uil and 
oppressive.'' It was resolved also, ' That the advisers (D) of the 
(D) It is plain from the above resolve of the delegates, that they con- 
sidered the Governor, not as my lord's minister, but as his deputy, or lieu- 
tenant, acting by the advice of others, nor pursuing his own immediate 
measure, and sentiments. It is no imputation on the Governor's under- 
standing to have been guided by a counsellor, from whose experience, and 
knowledge, he might have expected the best advice, when he did not 
suspect, or did not discover the interested motive, from which it pro- 
ceeded ; the minister has the art of covering his 7-e<d views with fair 

pretences. 

"And seems a saint, when most he plays the devil." 



84 FIKST CITIZEN AND ANTILON. 

said Proclamation are enemies to the peace, ivelfare and happiness 
of this province, and to the laws and constitution thereof.' 

"I shall now give a short extract from Petyt's Jus Parlia- 
mentarium, page 327, and leave the reader to make the applica- 
tion : — In a list of grievances presented by the commons to 
James the first, are Proclamations, of which comjjlaining 
bitterly, among other things they say, 'Nevertheless, it is 
apparent, that Proclamations have been of late years much 
more frequent than heretofore, and that they are extended, not 
only to the liberty, but also to the goods, inheritances and 
livelihood of men; some of them, tending to alter name pnyints 
of the laio, and make iheiu new ; other so7ne made shortly after 
a session of Farliaonient for matter directly rejected i)i the same 
session.' and some vouching former Proclamation, to countenance 
and waniirant the latter. 

"The Proclamation is modestly called by Antilon, 'a restric- 
tion of the officers,' at another time, 'preventive of extortion,' 
though in fact, it ought rather to be considered as a direction 
td the officers, what to demand, and to the people, what to pay, 
than a restriction of the officers. I appeal to the common sense 
and consciences of my countrymen; do ye think, that the 
avowed motive of the Proclamation, was the true and real one ? 
If no such Proclamation had issued, would ye have suffered 
yourselves to be oppressed, and plundered by the ofiicers? 
Would ye have submitted to their exorbitant demands, when 
instructed by a vote of 3'our representatives, ' That in all cases 
where no fees are established by law, for services done by 
officers, the power of ascertaining the quantum of the reAvard 
for such services is constitutionally in a jury upon the action 
of the party?' To set this matter in a clear point of view, 
and to expose the hollow and deceitful shew of a pretended 
clemency, and tenderness for the people, it may not be improper 
to introduce a short dialogue between an officer- and citizen. 

" Officer. How wretched and distressed would have been 
the situation of this province, if the well-timed and merciful 
Proclamation had not issued. 



GOVEBNOR EDEN'S ADMINISTRATION, 85 

"Cit. How SO? 

" Officer. The reason is obvious, had it not issued, we 
shoukl have been let loose on our countrymen to live on free 
quarter, for every little piece of service we should have exacted 
a genteel reward ; in a short time your pockets would have 
been pretty well drained, and to mend the matter, we might 
have pillaged and plundered, without being liable to be sued 
for extortion ; ' for we could not be guilty of extortion merely 
in taking money or other valuable thing for our services, unless 
we were to take more than is due ; it is obvious to common 
sense that there must be some established measure — or there 
can be no excess — That the term more cannot apply unless 
what is due be ascertained there must be a positive, or there can 
be no comparitive ; let the result then be considered, if something 
be undeniably due, when a service is performed, and no certain 
rule or measure to determine the rate, should an officer take as 
much as he can exact, he would not commit extortion according 
to the legal acceptation of the term extortion.' 

" Cit. This may be good law for aught I know, but if I could 
not sue you for extortion, I should still have a remedy. 

''Officer. What, pray? 

" Cit. I would only pay you what I thought reasonable. 

" Officer. But suppose I should not think the sum tendered 
sufficient, and refuse to receive it. 

" Cit. Wh}', then you might either go without any reward 
for your service, or you might sue me, to recover, what in your 
estimation would be adequate tlieretq, and thus leave the 
quantum of the recompence to be settled by a jury. 

"Officer. This expedient did not occur to me ; your con- 
dition, I own, would not have been quite so deplorable as I 
imagined. 

" The plain answer of this citizen will be understood by 
many, who will not comprehend the more refined reasoning of 
the officer upon extortion ; and I fancy the citizen's resolu- 
tion in a like case, would be adopted by most people — Antilon 
has admitted That ' if the Proclamation had not the authority 



86 FIRST CITIZEN AND ANTILON. 

to fix the rates according to which the officers might receive 
and beyond icliich they coukl not hiirfalh/ receive, it was not pre- 
ventive of extortion, but whether it had or not such authority 
depended on its legality, deterfiiinahle in the ordinary Judica- 
tories.^ I should be glad to know whether its legality be 
determinable by the judges, or by a jury ; if determinable by 
a jury, the liberty and property of the people will be exposed 
to less danger ; were we sure of always having judges, as 
honest and upright as the present, the question, though of the 
most momentous concern, might perhaps be safely left to their 
decision ; but our judges are removable at pleasure, some of 
them might be interested in the cause, and if suffered to estab- 
lish their oivn fees would become both judge and party — a 
Governor, we have seen, decreeing as chancellor fees to be paid 
upon the authority of his own Proclamation, would fall under 
that predicament. Let us admit, by way of argument, that 
the decision of this question (the legality of the Proclamation) 
belongs properly to the judges ; suppose they should deter- 
mine the Proclamation to be legal ; What consequences would 
follow ? The most fatal and pernicious, that could possibly 
happen to this province ; the right of the lower house to settle 
fees, with the concurrence of the other branches of the legisla- 
ture, a right, which has been claimed, and exercised for many 
years past, to the great benefit of the people would be rendered 
useless, and nugatory. The old table of fees abounding with 
exorbitances and abuses, ^^'Ould ever rehiain unalterable ; 
government would hold it up perpetually, as a sacred palladium, 
not to be touched, and violated by. profane hands. 

" Reasons still of greater force might be urged against 
leaving with the judges the decision of this important ques- 
tion, whether the supreme magistrate shall have the j^ower to 
tax a free people without the consent of their representatives, 
nay! against their consent and express declaration, I shall 
only adduce one argument, to avoid prolixity. 

" The Governor, it is said, with the advice of his lordship's 
council of state, issued the Proclamation : three of our pro- 
Tincial judges are of that council ; they therefore advised a 



GOVEKNOR EDEN's ADMINISTRATION. 87 

measure as proper, and consequently as legal, the legality of 
which, if called in question, they were afterwards to determine. 
7s not this in some degree pre-jndging the question? It will 
perhaps be denied, (for what will not some men assert, or 
deny ?) That to settle the fees of offioers by Proclamation, ia 
not to tax the people ; I humbly conceive that fees settled by 
the Governor's Proclamation, should it be determined to have 
the force of law, are to all intents and purposes, a tax upon 
the people, flowing from an arbitrary, and discretionary power 
in the supreme magistrate — for this assertion, I have the 
authority of my Lord Coke express in point — that great 
lawyer, in his exposition of the statute de taUagio )W)i con- 
cedendo makes this comment on the word tallagium — 'Talla- 
gium is a general word and doth include all subsidies, taxes^ 
tenths, fifteenths, impositions, and other burthens, or charge 
put or set upon any man, that within this act are all new olii- 
cers erected with new fees or old officers ic'dh new fees for that 
is a tallage put upon the subject, which cannot be done with- 
out common consent b}' act of Parliament.' The inspection 
law being expired, which established the rates of officers' fees, 
adopted by the Governor's Proclamation, I apprehend, the 
people — (supposing the Proclamation had not issued) would 
not be obliged to pay fees to officers according to those rates ; 
this proposition, I take, to be self-evident ; now, if the Procla- 
mation can rdvive those rates, and the payment of fees agree- 
able thereto, can be inforced by a decree of the chancellor, or 
by judgment of the provincial court, it will most clearly fol- 
low, that the fees are neiv, because enforced under an authority 
eidirehj neic, and distinct from the act, by which those rates 
were originall}' fixed. Perhaps my Lord Coke's position will 
be contradicted, and it will be asserted, that fees payable to 
officers, are not taxes ; but on what principle, such an asser- 
tion can be founded, I am at a loss to determine ; they bear all 
the marks and characters of a tax; they are universal, unavoid- 
able, and recoverable, if imposed by a legnl authority, as all 
other debts ; universal, and unavoidable, ' for applications to 
the publick offices are not of choice but of necessity, redress 



88 FIRST CITIZEN AND ANTILON. 

cannot be had for the smallest or most atrocious injuries but 
in the courts of justice, and as surely as that necessity does 
exist, and a binding force in the Proclamation be admitted, so 
certainly must the fees thereby established, be paid in order 
to obtain redress.' There is not a single person in the com- 
munity, who at one time, or other, may not be forced into a 
court of justice, to recover a debt, to protect his property from 
rapacity, or to wrest it out of hands, which may have seized 
on it with violence, or to procure a reparation of personal 
insults. 

"Why was the inspection law made temporary? With a 
view no doubt, that on an alteration of circumstances, the 
delegates of the people, at the expiration of the act, with the 
consent of the Governor, and upper house, might alter, and 
amend the table of fees, or frame a new table. 

"That the circumstances of the province are much changed 
since the enacting of that law in 1747, the Proclamation itself 
evinces, by allowing planters to pay the fees of officers in 
money, in lieu of tobacco, which alternative has considerably 
lessened the fees, and is a proof, if any were wanting, that 
they have been much too great. It was insisted on by the 
lower house, that a greater reduction of fees was still neces- 
sary; by the upper, that the fees were already sufficiently 
diminished, and that they would not suffer ' any further reduc- 
tion of fees, than that, which must necessarily follow from the 
election given to all persons, to discharge the fees in tobacco, 
or money as may best suit them.' One would imagine tliat a 
compromise, and a mutual departure from seme points respec- 
tively contended for, would have been the most eligible way, of 
ending the dispute ; if a compromise was not to be effected, 
the matter had best been left undecided : time, and necessity 
would have softened dissention, and have reconciled jarring 
opinions, and clashing interests ; and then a regulation by law, 
of officers' fees, would have followed of course. What was 
done? The authority of the supreme magistrate interposed, 
and took the decision of this important question, from the 
other branches of the legislature to itself : in a land of freedom 



GOVERNOR EDEN's ADMINISTRATION. 89 

this arbitrary exertion of prerogative will not, must not, be 
endured. 

" From what has been said, I think it will appear that the 
idea of a tax is not improperly annexed to a regulation of fees 
by Proclamation 'but if the idea be projier, then fees can be 
settled in no case except by the legislature, because it requires 
such authority to lay a tax ; but the house of lords, the house 
of commons, the courts of law and equity in Westminster hall, 
the upper and lower houses of assembly have each of them 
settled fees' — they have so : the house of lords and the house 
of commons have that right derived from long usage ; and 
from the law of parliament, which is Jcx terrae, or part at least 
of the law of the land. Our upper, and lower houses of 
assembly claim most of the privileges, aj^pertaining to the two 
houses of parliament, being vested with powers nearly similar, 
and analagous (E) to those, inherent in the lords, and commons. 
' The CO ft rts of law (imi equity in fresfniiiisfer hall liave lilmwise 
settled fees :' by what authority? Antilon has not been full 
and express on this point : Have the judges settled the fees of 
officers in their respective coui'ts solely by the King's authority, 
or was that authority originally given by act of parliament to 
his Majesty, and by him delegated to his judges ? Admitting 
even, that the chancellor and judges of Westminster hall have 
settled fees, b}^ virtue of the King's commission, without the 

(E) I say nearly simillar ; a perfect similitude cannot be expected ; our 
upper house falls vastly short of the house of lords in dignity, and inde- 
pendence; our lower house approaches much nearer in its constitution to 
the house of commons, than our upper house, to the house of lords ; the 
observation of a sensible writer on the assembly of Jamaica may be 
applied to ours. — "The legislature of this province wants in its two first 
branches {from the dependent condition of the Governor and council) a 
good deal of that freedom, which is necessary to the legislature of a free 
country, and on this account, our constitution is defective in point of leg- 
islature, those two branches not preserving by any means, so near a 
resemblance to the parts of the British legislature, which they stand for 
here, as the assembly does; this is a defect in our constitution, which 
cannot from the nature of things be iutirely remedied, for we have not 
any class of men distinguished from the people by inherent honours; 
the assembly, or lower house has an exact resemblance of that part of 
the British constitution, which it stands for here, it is indeed an epitome 



90 FIRST CITIZEN AND ANTILON. 

sanction of a statute, yet the precedent by no means applies to 
tlie present case. The judges in England have not settled 
their own fees — if the Proclamation should have the force of 
law, the commissary general, the secretary, the judges of the 
land office, who are all members of the council, and who 
advised the Proclamation, that is, who concurred with the 
minister's advice, may with propriety be said to have estab- 
lished their own fees. The Governor as chancellor decreeing 
'Siis fees to be paid 'according to the very settlemeid of the Proc- 
y lamatioii,' would undoubtedly ascertain, and settle his own 
fees ; Would he not then be judge in his own cause ? Is not 
this contrary to natural equity? ' Where a statute is against 
common right and reason the common law shall controul it, and 
adjudge it to be void ; a statute contrary to natural equit}', as 
to make a iiian judge in his own cause is likewise void, ior j'nra 
naturae sunt immutahiJia.' The quotation from Hawkins given 
by Antilon, militates most strongly against him ; the chief 
danger of oppression, says the serjeant, is from officers being left 
at liberty to set their own rates on their labour, and make their 
oivn demands. Have not the officers who advised the Procla- 
tnation, and the Governor who issued it, in pursuance of their 
advice set their own rates, and made their oirn demands ? 
Answer this question, Antilon ? If you remain silent, you 
admit the imputation ; if you deny it, you will be forced to 



of the house of commons ; called by the same authority, deriving its 
powers from the same source, instituted for the same ends, and governed 
by the same forms ; it will be difficult, I think to lind a reason, why it 
should not have the same powers, the same superiority over the courts of 
justice, and the same rank in the system of our little community, as the 
house of commons in that of Great-Britian. I know of no power exer- 
cised by house of commons for redressing grievances or bringing publick 
offenders to justice, which the assembly is incapable of — I know of none, 
Avhich it has not exercised at times except that of impeachment and this 
has been forborn, not from any incupaeity in that body, but from a defect 
in the power of the council ; an impeachment by the house of commons in 
England, must be heard in the house of lords, it being below the dignity 
of the commons, to appear as prosecutors, at the bar of any inferior court." 
The powers therefore of the house of commons, and of our lower house 
being so nearly similar, their respective privileges also must be nearly 
the same — see the privileges of the island of Jamaica vindicated. 



GOVERNOR EDEN's ADMINISTRATION. 91 

disavow the advice, you gave. The Proclamation is sometimes 
represented by A)diloii as a very harmless sort of a thing — it has 
no force, no efficacy, but what it receives from its legality 
' determinable in the ordinal!^ judicatories.' He has not indeed 
told us expressly, who are to determine its legality ; if the 
the judges of the . provincial court are to decide the question, 
send they should determine the Proclamation to be legal, in 
that case, I suppose, an appeal would lie from their judgment, 
to the court of appeals — Would not an appeal to such a court, 
in such a cause, be the most farcical and ridiculous mummery 
ever thought of ? All that has been said against the Procla- 
mation, applies with equal or greater force against the instru- 
ment, under the great seal for ascertaining the fees of the land 
office. Antilo)! having noticed 'That in consequence of a com- 
mission issued by the crown, upon the address of the British 
house of commons, the lord chancellor by the authority of his 
station and by and with the advice and assistance of the master 
of the rolls, ordered, that the officers of the court of chancery 
should not demand or take any greater fees for their services, 
in their respective offices, than according to the rates estab- 
lished' — I have thought proper to insert in the note (F) referred 

(F) Antilon infers from this art^iimeut, that the Governor has the same 
power in this province. In England, the King originally paid all his own 
officers; nothing therefore could be more consistent with the spirit of the 
constitution, than that he should establish the wages, irJu) paid them. It is 
not so in this country, nor is it at present the case in England; they are 
now paid out of the pockets of the people; sheriffs, and many other 
officers have therefore their fees ascertained by act of parliament, and in 
those cases, where the fees given originally by the crown, are now estab- 
lished by custom, the parliament claims, and has exercised a power of 
controul over them, as will appear by the following quotations : "The 
commons ordered in lists of all the fees taken in the publick offices 
belonging to the law, which amounted annually to an incredible sum 
Tiioni of it to ojficcrxfor doing nothing ; but the euquirj^ was too perplexed, 
and too tedious for any effectual stop being put to the evil within the 
period of one session" — Tindal's continuation of Rapin's history. 
Ea-tract of a report of a rontmittee of the house of commons impowered to 

inqnire into the state of the officers' fess belonging to the courts in Westminster 

hull — April, 175'2. 

" Among the various claims of those, who now call themselves officers 
of the court of chancery, none appeared more extraordinary to the com- 



92 FIKST CITIZEN AND ANTILON. 

to, some particulars relating to a similar measure, for the 
information of mj readers, and to shew, that a regulation of 
officers' fees, fell under the consideration of the house of 
commons, and that the same encroaching spirit of office, which 
has occasioned such altercations, heart-burnings, and con- 
fusion in this province, has prevailed also in the parent state. 
The settlement of fees bj order of the chancellor, under his 
Majesty's commission, issued pursuant to an address of the 
house of commons, is not, I will own, a tax similar to ship- 
monej. But a regulation of fees bj Proclamation, contrary to 
the express declaration of our house of burgesses, is very 
similar thereto. (G). 



mittee, than the fee of the secretary, and clerk of the briefs, who upon 
grants to enable persons to beg, and collect alms, claim, and frequently 
receive a fee of forty, tifty, or sixty pounds, and the register takes besides 
twelve or thirteen pounds for stamping and telling the briefs, which fees, 
with other great charges upon the collection, devour, three parts in four 
of what is given for the relief of persons reduced to extreme poverty by 
fire, or other accidents." The committee closing their report with "obser- 
ving how little able or willing many officers were to give any satisfactory 
account of the fees, they claim, and receive," came to the following 
resolution : 

licvAred, " That it is the opinion of this committee that the long disuse 
of publick enquiries into the behaviour of officers, clerks, and ministers 
of the courts of justice has been the occasion of the encrease of unneces- 
sary officers and given encouragement to the taking illeffal feen. 

Resolced, " That it is the opinion of this committee that the interest, 
which a great number of officers and clerks have in the proceedings of the 
court of chancery has been a principle cause of extending bills, answers, 
pleadings, examinations and other forms, and copies of them to an unneces- 
sary length to the great delay of justice and the oppression of the subject. 

Re.Koliu'Al, " That it is the opinion of this committee that a table of all 
the officers, ministers, and clerks, and of their fees in the court of chan- 
cery should be fixed, and established by authority, which table should be 
registered in a book, in the said court, to be at all times inspected gratis, 
and a copy of it signed and attested by the judges of the court, should be 
returned to each house of parliament, to remain among the records." If 
the commons had a right to enquire itito the abuses committed by the 
officers of the courts of law, they had (no doubt) the power of correcting 
those abuses, and of establishing the fees, had they thought proper, to be 
paid to the officers >of those courts. 

(G) Because it is a tax upon the people without the consent of their 
representatives in assembly, as has been, I hope, demonstrated to the 
satisfaction of my readers. 



GOVERNOR EDEN's ADMINISTRATION. 93 

"Exclusive of the above reasons, another very weighty 
argument, arising from the particular form of our provincial 
constitution, may be brought against the usurped powers of 
settling fees by Proclamation, and against the decision of its 
legalit}^, in our 'ordinary judicatories.'' We know, that the 
four principal officers in this province, most benefited by the 
Proclamation, are all members of the upper house ; I have said 
it, and I repeat it again, a tenderness, a regard for those gentle- 
men, a desire to prevent a diminution of their fees, have hith- 
erto prevented a regulation of our staple ; in a matter of this 
importance, which so nearly concerns the general welfare of the 
province, personal considerations and private friendships, shall 
not prevent me from speaking out my sentiments with freedom ; 
neither shall antipathy to the man, whom in my conscience I 
believe to be the chief author of our grievances, tempt me to 
misrepresent his actions, ' or set down ought in malice ' — 
neither a desire to please men in power, nor hatred of those, 
who abuse it, shall force me to deviate from truth. ' But the 
present Proclamation is not the invention of any daring 
ministers now in being ' who said he was the inventor ? TJie 
minister notv in being has revived it only, in opposition to the 
unanimous sense of the people, expressed by their representa- 
tives, after a knowledge too of the evils, and confusion, which it 
heretofore brought on the province. Dismayed, trembling, and 
aghast, though sculking behind the strong rampart of Governor 
and council, this Anfilon has intrenched himself chin deep in 
precedents, fortified with transmarine opinions, drawn round 
about him, and hid from publick view, in due time to be 
played ofi", as a masked battery, on the inhabitants of Mary- 
land. I wish these opinions of 'Lawyers in the opposition ' 
would face the day, I wish the state, on which they were 
given was communicated to the publick, ' the opinion respect- 
ing the Proclamation is on no point which the minister for the 
time being aims to establish ' — if in favour of the Proclama- 
tion, I deny the assertion ; the Proclamation is a point which 
the minister of 31aryland aims to establish, in order to estab- 
lish his own power, and perquisites. Antilon asks 'If they 



94 FIRST CITIZEN AOT) ANTILON. 

(the confederates) have any other measure besides the 
Governor's Proclamation, to arraign as an attempt to set the 
supreme magistrate above the law '? ' First evince, that the 
Proclamation is not such an attempt ; till then, it is needless 
to point out others ; without entering into foreign matter ; I 
have already given you an opportunity ' of shewing me stripped 
of disguise What I am,' I have shewn what, stripped of disguise, 
you are — 

' Homo naius in perniciem Jmjiisce reipublicae.' 
a man born to perplex, distress, and afflict this country." 

First Citizen. 
February 27, 1773. 



GOVERNOR EDEN's ADMINISTRATION. 95 



CHAPTER 9. 

THE THIRD LETTER OF ANTILON. 



1773. The battle had begun with vizors down, but it was 
only fairly in earnest before the swords of each contestant had 
unlocked the helmet of his adversary and the Knights were 
facing each other with full knowledge of his opponent's iden- 
tity. Antilon, rising with the sujjerciliousness of uncontrolled 
anger, in his third letter, asks : 

" After all, who is this man that calls himself a Citizen, 
makes his addresses to the inhabitants of Maryland, has 
charged the members of one of the legislative branches with 
insolence, because in their intercourse with another branch of 
the legislature they proposed stated salaries, and has himself 
proposed a dlferent provision for officers ; contradicted the 
most jDublic and explicit declarations of the governor ; repre- 
sented all the council but one to be mere fools, that he may 
represent him to be a political parricide ; denounced infamy, 
exile and death ; expressed a regard for the established church 
of England? Who is he? He has no share in the legislature, 
as a member of any branch ; he is incapable of being a mem- 
ber ; he is disabled from giving a vote in the choice of rep- 
resentatives, by the laws and constitution of the country, on 
account of his principles, which are distrusted by those laws. 
He is disabled, by an express resolve, from interfering in the 
election of members, on the same account. He is not a 
Protestant.'' 

To this contemptuous allusion to himself. First Citizen 
replied that he was :— 

" A man, Antilon, of an independent fortune, one deeply inter- 
ested in the prosperity of his country ; a friend to liberty, a 
settled enemy to lawless prerogative." 



96 FIRST CITIZEN AND AJS^TILON. 

Mr. Dulany did not escape liis full share of uiifrieiidlv per- 
sonal allusions and bitter criticisms. He was constantl}^ des- 
ignated "the prime minister" of the governor, and Eden was 
likened to an unfortunate king who was following the advice 
of wicked counselors. Nor did the public let Mr. Dulany 
forget that in his " Considerations " (1765) why England had 
no right to tax America without its consent, he had then taken 
ground directly opposite from the position he now occupied. 
The public could see no diflerence between a tax laid on them 
by imports and a tax laid for fees, which fees if not paid 
rendered a seizure of their property as a legal corollary. In 
Mr. Dulany 's behalf it must be remembered, that he drew his 
distinction between a tax by a statute, without consent of 
those taxed, and fees paid public ofKcers for services that they 
had rendered in the line of their official duty. He held that 
public officers were entitled to remuneration when their offi- 
cial services were performed. The weakness of Mr. Dulany's 
later position was that, under color of fees for services, unless 
the people had the right to regulate them, a corrapt govern- 
ment could rob them of every scintilla of their property. 

Antilon's third letter appears in the Gazette of April 8th. 
Antilon said : — 

" Sub pe('t<rre totn 

Invidia intinnuit, stultain furor ahripuitque. 

"Before I bestow any animadversion upon other imperti- 
nences, I shall endeavor to collect, and reduce to as much 
method, as they will bear, those i3arts of the Citizen's last 
performance, which have any apparent relation to the procla- 
mation, and if the intelligent reader should be mischievously 
inclined to entertain himself with my distress, and for this 
purpose have recourse to my former paper, and my adversary's 
answer to it, I shall readily forgive him, if he smiles at the 
trouble I take to arrange desultory cavils, and extract out of 
the effusions of ignorance, and malice objections for refutation. 

" ' It is a very unfair thing (as Swift obseiTes) in any writer 
to employ his ignorance, and malice together, because it gives 
bis answerer double work. It is like the kind of sophistry 



GOVERNOR EDEN's ADMINISTRATION. 97 

that the logicians call two medimns, which are never allowed in 
the same syllogism, a writer with a iceali head, and a corrupt 
heart is an overmatch for any single pen, like a hireling jade, 
didl, and vicious, hardly able to stir, yet offering at every turn 
to kick.' 

" In my former letter I laid before the reader for his exami- 
nation, and comparison, the two transactions of the ship-money 
tax, and the proclamation, and shewed that the former imposed 
a direct tax on the people, and inforced the payment of it by 
the rigorous means of execution affecting the property, and 
personal liberty of the subject, and that the latter contained 
the sanction only of the Governor's threats of displeasure to 
officers dependant, and removeable without any enforcement 
extended to the people beyond that, which the ordinary courts 
might confer on the very ground of its legality. I also proved 
that without some settled rate, or standard vo exaction of aoi 
officer could be punishable as extortion, and that judges and 
others not vested with a legislative authority, had settled, and 
ascertained the fees of officers for the very j3urpose of pre- 
venting the oppression of the subject, and concluded, the two 
transactions, were not only not equally arbitrary infractions of 
the constitution, but were entirely dissimilar. The Citizen 
professes his design to consider my reasons in defence of the 
proclamation, and after having 'granted that the assessment 
of ship-money was a more open, and daring violation of the 
constitution, still contends that the proclamation, though more 
disguised, is eqiudhj subversive i)i its consequence of liberty.' 
The reader will remember that the Citizen to support the 
clvaracter he has attributed to the proclamation, must prove it 
to be an arhitrary tax. 

"He allows that the tax of ship-money was an 'open and 
avowed attack on liberty ' and seems to apply to the procla- 
mation the epithets, 'modest, mild, and conciliating.' He 
acknowledges that the methods pursued in levying the ship- 
money were the ' arbitrary seizure of property and deprivation 
of personal liljerty ' and that there ' is no attempt in the proc- 



\)S FIRST CITIZEN AND ANTILON. 

lamation to subject the people to any execution ; ' but, notwith- 
standing his admission of so great difference, he endeavours to 
maintain his position, that the proclamation is as subversive, 
in Us conseijuence, of liberty, as the levy of ship-money was, 
^The most daring attacks on liberty, he says, are not perhaps 
the most ' dangerous, ' because extreme violence excites general 
indignation, and oj^j^osition ; but the ' modest, mild, conciliat- 
ing manner, in which the latent designs of a crafty minister 
come .so;>;e^//^ies recommended, ought to render them the more 
suspected, and should always inspire caution, and diffidence, ' 
let the operation, and effect of the proclamation determine its 
character ; but, because the manner is modest, &c. — let not 
susj^icion at once infer, that the design of it is to violate the 
peoples' rights ; for if one measure is to be opposed, because 
■expressed in an imperative stile, and attended with the most 
rigorous enforcements, and another measure is also to be 
opposed, because it is ' modest, mild, ttc. ' in the manner, and 
unattended by any enforcement, except what it derives from 
the law, it would be difficult, indeed, for the best intentions 
to escape censure. In speaking of the ship-money exactknt, 
the Citizen admits my account of it to be, ' in the main 
true,' but intimates that 'it is not impartial,' 'it is in the 
main true.' In what was it then not impartial? The exility 
of the insinuation shall not protect the principle of it, nor 
shall contempt so entirely extinguish indignation, as to 
hinder me from exposing the subdolous attempt. The appella- 
tion, ' Tyrant' has, I suspect, rubbed the fore. The ' tax ' (says 
he) 'was very moderate little exceeding, £200,000 sterling — it 
was levied vfiih. justice and equity, etc.,' 'moderate?' When the 
people were plundered of every farthing of it? 'levied with 
justice and equity ; when extorted by the rigours of distress, 
and imprisonment, in the most direct violation of every prin- 
ciple of liberty? The moderation, justice, and equity of a 
robber, who should suffer the plundered passenger to retain 
half a crown for his dinner, might be celebrated with equal 
grace and propriety. Again he whines — ' the boundaries 
between liberty, and prerogative were far from being ascer- 



GOVERNOR EDEN's ADMINISTRATION. 99 

tained.' What, had not Magna Charta so often (at least thirty- 
two times) confirmed the statute (he has referred to on another 
occasion) de tallagio non concedendo, the petition and act of 
rights (to mention no other) moHt dearly established the prin- 
ciple, that ' the people conld not be taxed without their consent ?' 
The boundary could not have been more clearly marked out by 
the utmost precaution of jealous prudence or more outrageously 
transgressed by the most determined, and lawless tyranny, and 
yet the Citizen, the generous friend of liberty, though he has 
adopted the pretences of a notorious apologist, has advanced 
them without any vieu^ to 'excuse the assessment of ship- 
money, or exculpate King Charles ' — he means not to apologize, 
though he has adopted the ver}^ pringiples of the tyrant's 
apologist — again 'James the lid by endeavoring to introduce 
arbitrary power, and subvert the established church deserved to 
be deposed, and banished, and the revolution rather' says the 
Citizen, 'l)rought about, than followed King James' ahdication of 
the crown.' 

" Here reader you have another proof of the staunch wliig- 
gism of the cliampiou so properly celebrated by our Independent 
Whigs. ' The revolution rather brought about, than followed 
King James' abdication ? ' . 

"Those great men, by whom the cause of national liberty 
was supported, entertained very different ideas from our Inde- 
pendent Whigs and their champ)ion. They received their 
instruction in a very different school. The commons voted that 
King James lid ' having endeavoured to subvert the constitu- 
tion of the kingdom, by breaking the original contract between 
king, and people, and by the advice of Jesuits, and other wicked 
persons, having violated tlie fundamental laws, and withdrawn 
himself out of the kingdom hath abdicated, the government, 
and the throne is thereby become vacant, and that it hath 
been found by experience to be inconsistent with this protestant 
kingdom to be governed by a popish prince.' 

"The abdication of James was, the ivrong done by him, 'the 
government is under a trust, and acting against, is renouncing 

L.ofC. 



100 FIRST CITIZEN AND ANTILON. 

it; for how can a man in reason, or sense, express a greater 
renunciation of a trust, than by the constant declaration of his 
actions contrary to that trust.' 

" ' The revolution rather brought about than followed the 
abdication.' 

"The principles of this champion for whiggism having been 
developed, the Indepeiule^ds, perhaps, may doubt the propriety 
of their political attachment, when they consider the effect of 
the Citizen's suggestions is, that the revolution was irither an 
act of violence, than of Justice, unless, indeed, the regard he 
has expressed for the established church, so consisterd with his 
religious profession, should haply, divert their attention; for 
this regard, to be sure, is very commendable. 

"That the proclamation restrains the officers is certain, and, 
having this effect, //* it has no other, it is beneficial — if it has 
moreover, the effect of binding the people to pay, as well as the 
officer to receive according to the adopted rates, this effect 
flows from its legality, from the same princii^les, that the 
general protection, and security of men's rights are derived. 

" The ship-money was levied upon the people, when no part 
of it was due — the officer can receive nothing, when nothing is 
due, and yet the Citizen alleges they equally correspond with 
the idea of tax, and of an arbitrary, tyrannical imposition — a 
tax cannot be laid unless by the legislative authority; but fees, 
the Citizen is constrained to admit, have been lawfully settled by 
the lords alone, by the commons alone, by the upper and lower 
houses separately, and by the courts of law, and equity in 
England — that these fees have not been settled by the legislative 
authority is therefore clear. What is then the plain result? 
No tax can be imposed, except by the legislature, but fees have 
been lawfully settled in the manner premised by persons, not 
vested with legislative authority, consequently the settlement of 
fees is not a tax. On this head the (Jijizen remarks, that the 
lords and commons derive 'their right from long usage, and 
the hiw of parliament which is part of the law of the land ' — 
be it so, but the law of parliament, which is part of the law of 



GOVERNOR EDEN's ADMINISTRATION. 101 

the land, dotli not vest the lords, or the commons alone with 
aiithority to tax. The amount then of the Citizen's reasoning 
is, that the lords and commons separately settled fees, because 
they are enabled so to do by the law of the land. The judges 
have no share in the legislafnre : but their settlement of fees is 
laivful too, whence is their authority derived ; but from the law 
of the land? The 'chief danger of oppression (says Hawkins 
in his treatise of crown law) is from officers being left at 
liberty to set their own rates, and make their own demands, 
therefore the law has authorized the judges to settle them.' 
How are these settlements, and the admission of their legality to 
be reconciled with the position that fees are taxes ? ' The 
proclamation, says the Citizen, is in its consequence, as subver- 
sive of liberty, as the ship-money, if the judges should deter- 
mine costs to be paid according to the rates, because execution 
would necessarily follow a refusal to pay those rates.' 

" This objection, if I am not mistaken, suggests an addi- 
tional argument to prove the settlement of fees to be, not only 
not an arbitrary tax, but a legal unavoidable act. When a suit 
is brought in a court of law, or equity, or carried by appeal 
from an inferior to a superior jurisdiction, and a final judg- 
ment, or decree is given, in which costs are awarded, these 
costs are necessarily ascertained, and the party against whom 
they are awarded is compelled to pay them. It will, I j)re- 
sume, be admitted to be just, and reasonable, that the person, 
obliged to apply to a court for justice, should be repaid the 
lawful costs attending the prosecution of his suit, and that a 
party, put to expence in defending himself against an illegal 
claim, should also be repaid l)y his adversary the legal costs 
attending his defence. What then are these costs, which ought 
to be awarded, and must necessarily be ascertained, by the 
judgment or decree ? the fees of the lawyer, and of the officers 
constitute, sometimes, the whole, sometimes part of these 
costs, and the fees are not only such, as have been actually 
paid, but such too as the party is lawfully chargeable with. If 
he has paid, or stipulated to pay more, than the legcd rates, he 
is entitled to no allowance for the excess. The voluntary pay- 



102 FIRST CITIZEN AND ANTILON. 

ment or contract of the party would be a very inconvenient 
rule, if not controuled by some other standard — he might be 
induced by a per60/?ff/ regard for the lawyer, or the officer, or 
by Ms enmity to his antagonist to exceed the just proportion. 
The luw^'er cannot lawfully demand, or receive his fee, which 
makes part of the costs, till the cause is finished ; the officer 
too, generally, gives credit, beyond the time of passing the 
judgment, or decree, for fees, which also are part of the costs ; 
but the suitor being chargeable the fees are included in the 
costs awarded by the judgment or decree, which may be imme- 
diately carried into execution. That the costs not only may, 
but must be awarded in various cases — that the fees of the 
lawyer, and officers are comprehended in the costs- — that the 
costs must be ascertained in the judgment, or decrees — that 
therefore there must be some established rnle or standard to settle 
andjix the rates of the fees which constitute the whole, or part of 
the costs, cannot be denied. The fees of the lawyer are settled 
by an act of assembly, the fees of the officer are not. There 
must be then some other authority to settle these fees, because 
they constitute part of the costs, and the judgment or decree, 
awarding the costs, must necessarily be precise. Justice cannot 
be administered without the exercise of such authority, and 
what is essential to the administration of justice, I must con- 
clude, is not only, not an arbitrary, despotick imposition 
extremely like the levy of ship-money derogatory from the most 
fundamental principles of a free constitution ; but is most 
consistent with, and even necessary to the general j^rotection 
of the people; wherefore the consequence of an execution for 
costs is so far from fixing the opprobious character of an 
arbitrary, oppressive tax, subversive of liberty, that on the 
contrary, it proves the necessity of settled rates for the very 
purposes of justice. The Citizen adopts a quotation from 2d 
inst. to prove that the settlement of fees is a tax ; but what 
Coke observes may be fully admitted without any jjroof, that 
every settlement of fees is a tax. If this had been his asser- 
tion it would be overruled by the clearest authorities, by every 
one of the instances of the settlement of fees already enuni- 



GO\"ERNOE EDEN's ADMINISTRATION. 103^ 

erated, as well as by other, depending upon the same principle. 
The statute, de tallagio non concedendo, speaking in the royal 
name, is to this effect, 'no tallage or aid shall by us or our 
heirs be put or levied in our kingdom trifhout the (/irinf of 
parlifunerd. ' Coke in his exposition of this part of the statute, 
observes that ' all new officers erected with new fees, or old 
officers with new fees are within this act ; for that is a tallage 
put upon the subject, which cannot be done without common 
consent by act of parliament. ' 

"The offices, to which the proclamation relates, are .not 
within the designation, new offices, and therefore so far the 
passage from 2d inst. is irrelative. The offices are <>hl and 
constitatloncd such as do not depend upon any will or discre- 
tion of the supreme magistrate, whether they shall be con- 
tinued, or cease ; but must be preserved as functions, always 
exerciseable, and necessary to the execution of the laws. New 
fees are not to be annexed to such offices according to Coke's 
opinion, by which is plainly meant, that the old, or established 
fees belonging to these offices cannot be lawfully augmented, or 
altered without an act of parliament. That in the old offices, 
fees may be settled for necessary services, when there happens 
to be no prior provision, or establishment, and that such set- 
tlement is lawful, and in the case of costs, I have already con- 
sidered, indispensably necessar[/, the instances enumerated evince. 

" The judges determined that an under-sheriff should receive 
a fee of a person brought to the bar for, and acquitted of, a 
felony, ' because it was assigned to the officer by the order antl 
discretion of the court, and that it was with reason and good 
conscience this fee was allowed by the court to the officer, for 
the trouble and cJmrge he has with prisoners, and of his attend- 
ance on the court, as a reward for the service.' 21 H. 7. 
17, 28. 

"Fees not settled by the legislature, and which may be law- 
fully received, are not taxes, becaiise it is not competent to 
any persons, not constituting the legislature, to /(/./■ the subject. 
The same authority distinct from the legislative, that /i((s set- 



101 FIRST CITIZEN AND ANTILON. 

tied, in ay settle the fees, when the proper occasion, of exer- 
cising it, occurs. ' Wltere there is the some reason, there is the 
same law.'' Wherefore I presume to think, that though the old 
or estahlished fees are not to be altered, increased, or aug- 
mented, yet, when fees are due, and the rates of them are not 
established, they may be settled ivitliout the legislative authority, 
because the principle of the authority remains, and it ought to 
be active, when the reason of it calls for exertion. Though the 
Citizen had admitted that the lords alone, the commons alone, 
the ujjpfer and lower houses separately, the courts of law and 
equity, have lawfully settled the fees of their officers, and con- 
sequently fees so settled are not taxes, which cannot be laid 
but by the act of the ichole legislature, yet has he cited 2d inst. 
to prove that fees are a tax — again from some proceedings of 
the. house of commons, he infers a power in the commons alone 
to settle fees in the courts, for that he is of opinion at one time 
fees are a tax, at another, he admits they are not a tax, again he 
asserts that they are a tax, and again that they are not a tax. 
" Quo teneam vul tus mutantem Protea nodo " (with what 
noose may I hold this Proteus so often shifting his forms.) 
Having given an extract of some proceedings of the house of 
commons upon an enquiry into fees received by the officers 
belonging to the law, and of the resolves of the committee, 
that ' it was their opinion the long disuse of publick enquiries 
into the behaviour of these officers had been the occasion of 
unnecessary officers, and illegal fees — that the interest of the 
great number of officers was the occasion of extending the 
forms to unnecessary lengths, of great delay, and oppression, 
and that a table of all the officers, and of their fees in chan- 
cery should hefxed, and ascertained by authority, which table 
should be registered in a book in that court, to be inspected 
at all times gratis, and a copy of it signed and attested by the 
judges, should be returned to each house of parliament to 
remain among the records,' the Citizen makes a sagacious, and 
pertinoit observation, which gives an adequate proof of his 
constitutional knowledge, and logical abilities — ' if the com- 
mons (says he) had a right to enquire into the abuses com- 



GO^'ERNOK EDEN's ADMINISTKATION. 105 

mitted by the officers of the courts, they had, no doubt, the 
poiver of correcting these abuses, and of estahUshing the fees 
in those courts, had they thought proper.' 

"Without doubt the parliament, or the general assemblj 
may establish fees ; but the Citizen's conclusion is, that the 
commons alone can, and the premises whence he draws his 
egregious inference are these — the Commons have authority to 
enquii"e into the abuses committed by the law officers — so that 
his argument in form is this — whenever the commons have a 
right to empdre into any subject, they may efitahllnh whatever 
they )iiay tliltih proper concerning that sul>ject. 

" Navim agere iguarus navis timet ; abrotonura aegro 

Nou audet, nisi qui didicit, dare; quod medico rum est 

Promittuut medici ; tractaut fabrilia fabri." 
"The igu'raut landman shakes with fear 

Nor dares attempt the ship to steer ; 

He who ne'er learn'd the doctor's trade, 

To give ev'n southernwood's afraid; 

Profess'd physicians cure by rules, 

And workmen handle workmen's tools." 

"The magnanimous citizen, liowever, undertakes aut/ thing, 
though it must be confessed by his admirers, that a little more 
diffidence would impeach his understanding, no more than it 
would tarnish his modesty ; but though the extract is entirely 
destitute of all force in the Citizen s apjjlicatio)) of it, yet it 
suggests an additional circumstance in favour of the proclama- 
tion, which his malevolence has arraigned, and his arrogance 
has censured, for the opinion of the commons may be justly 
inferred from these expressions in their resolves, 'a table of 
all the fees should he fixed, and established by authority that a 
precise settlement of the rates would be the proper means of 
preverding extortion,' according to Serjeant Hawkins' observa- 
tion already cited, and from the expressions, ' the table of fees 
should be registered in a book open to inspection gratis, and a 
copy of this table signed and attested hij the judges returned to 
each house of parliament,' it may also be justly inferred that 
the 'authority' meant was not reposed, in themselves, and as they 
icerc to he informed hy a copy, signed and attested hy the judges 



106 FIRST CITIZEN AND ANTILON. 

of the specijick exercise of it, that the judges, who were to 
give information under their signatures, and official attestation, 
were understood to be the persons vested with the authority to 
fix, and establish the fees. The settlement of fees a tax, and 
yet the commons acknowledged the authority of the judges to 
make the settlement. 

"Putat tonsor sibi poscere navim Luciferi rudis? exclamat 
Melicerta, perisse Epontem de rebus. 

(A) 'Should a mei-e barber think to ask 
A pilot's trust, (an ardous task) 
Yet cannot, such a dunce is he. 
An observation make at sea, 
Well *Melicerta might exclaim 
That he had lost all sense of shame.' 

" That questions ought not to be prejudged is another of the 
Citizen's objections. This is very true in a proper application, 
but extremel}^ absurd in the Citizen's — if there were no prece- 
dents, or established rules, the measures of justice miglit be 
very unequal, and the scales uneven and unsteady. ' Misera 
est servitus, ubi jus est vagum.' The utility of precedents 
consists in the very effect, which is the ground of the Citizen's 
objections, that similar cases are governed by them. Without 
this effect, contests would be infinite. What he calls prejudg- 
ing, is that which is the consequence, the salutary, beneficial 
consequence of legal certainty, preventive of endless litigation, 
vexation, and distress. The judges must have therefore, some 
fixed, stable rule for tbe ascertainment of costs. Indeed, reader, 
I find it to be a very irksome task to encounter such extreme 
ignorance, blended with such exuberant vanity, pertinacious 
impudence, and connate malignity, and to unravel the con- 
texture they have formed. I observed in my former letter, 
that the courts of law and equity had settled fees, and the 
Citizen asks by what authority. The passage in Hawkins, 

(A) I have taken some liberty with Perseus but not more than the 
Citizen has done in his motto with Pym's Speech — 
'■'■Neque enim lex oiquior ulla est." 
*The marine deity. 



GOVEENOR EDEN's ADMINISTRATION. 107 

already quoted, answers the (Question. Admitting, however, 
that the judges have settled fees, the Citizen alleges the ' prece- 
dent does not apply.' Surely to prove that the settlement of 
fees is not a tax, which nothing less than the full legislative 
authority can establish, and therefore the precedent applies to 
destroy the very principle on which he has ' spent his feeble 
efforts ' to prove the proclamation an arbitrary tax, as subver- 
sive of liberty as the levy of ship-money. 

" Cereopithecus quam sapiens est animal, aetatem qui uno 
ostio nunquam committit suam, quia si unum ostinan obside- 
atur, aliud j)erfugium gerit. 

(B) So wise the monkey, that he ne'er confides * 
His safety to one passage ; but provides 
That, if th' adversary should one make sure, 
Another then may his retreat secure. 

"Lest the objection to the proclamation that it is a tax 
should be refuted, the sagacious Citizen has provided another 
outlet for escape. 'The precedents of judges having settled 
fees, says he, do not apply, because they have not settled their 
own fees ; but the commissary, secretary, judges of the land- 
office, being membeis of the council, and advisers of the proc- 
lamation (that is) coiicurriiig with the advice of the minister ; 
may he said to have established their own fees; and the 
governor (C) as chancellor, deo-eeing his fees according to the 

(B) Here too, after the example of the Citizen, I have been a little free 
with Plautus. 

(C) What the Citizen has remarked, in one of his notes, to prove it 
inconsistent with the security, which the constitution of England affords 
in the distribution of the legislative, executive, and judicial powers, for 
the governor to be chancellor, proceeds from his very crude ideas of the 
British policy — "were the judiciary power joined with the legislative, the 
life and liberty of the subject would be exposed to arbitrary controul : for 
the judge would then be legislator;" but this does not prove that if a 
branch of, and not the whole legislature exercises a judicial power, there 
would be this consequence. The lords who are a branch of the legislative 
exercise a judicial power. The king, in whom the executive power is 
lodged, exercises, personally, no judicial power, considering the royal dig- 
nity and pre-eminence the idea of his being a judge in an inferior, subor- 
dinate and controulable jurisdiction would be absurd, and if the judicial 
power should be reposed in him absolutely, and conclusively, and his 



108 FIRST CITIZEN AND ANTILON. •■ ' 

very settlement of the proclamation, would undoubtedly ascer- 
tain and settle his oicn fees^ and be Judge in his own ccmse. ' 
Here the idea of tax is dropped. Who the wicked minister is, 
we shall be puzzled to find out. The commissary, secretary, 
and judges of the land-office concurring with his advice, he is 
not to be sought after in this list of officers. ' It may be said, ' 
to be sure, Mr. Citizen, anything may be said — the proclama- 
tion however has no relation to the chancellor; "Plain Truth 
has sufficientl}^ exposed the absurdity" of this imputation. 
* The governor decreeing his fees as chancellor ! ' ' He is 
generous, of a good heart ; but youthful, unsuspicious, diffi- 
dent. ' I shall not analyse your composition ; but pray, Mr. 
Citizen, let me ask, what reason, Avhat experience, what prob- 
able conjecture have you to extenuate your affrontive insinua- 
tion ? Has he ever been a judge in his own cause ? Has he 
ever betraj-ed any symptom of an inclination to be so ? Again 
at your mischievous tricks 'tam forma & mores sunt consimiles' 



decisions not subject to examination and controul on an aj^peal to a 
superior jurisdiction, there would be great danger of, because there would 
be no regular method to prevent, violence, and oppression — now the chan- 
cellor, though he exercises a judicial power, and is vested with the execu- 
tive, as governor, cannot commit the violence, and oppression dreaded, 
because there is an appeal to a superior provincial jurisdiction, and 
his decrees may be reformed, or reversed, and an ultimate appeal too 
is provided to the king in council; and, moreover, he is removeable, 
accountable, and even punishable, for violence and oppression — whence 
then the danger to liberty from the chancellor's violence and oppres- 
sion. In New York, and in the Jerseys, the governors are chancel- 
lors — in Virginia the governor, and also the members of the council, 
the executive, and two branches of the legislative exercise an exten- 
sive judicial power in matters of equity, lavr, and of crimes. Should 
any branch of the legislative, whether govei-nor, upper, or lower house, 
assume, in any instance, all the powers legislative, executive, and judicial, 
without doubt, it would be an extreme violation of the constitution, and 
the Citizen's impartiality would severely condemn it, though a tenderness 
for his connexions may prevent his publick censures. A similar affection 
perhaps, inclined him to pass over a question, or two, in my former letter. 
I do not wish him to offend any of his connexions. Let those, whom he 
has honoured with his regard, still enjoy it, however opposite their polit- 
ical walks, political attachments, and the colours of their apparent politi- 
cal principles may have been. 
*See the Gazette, No. 1436. 



GOVERNOR EDEN's ADMINISTRATION. 109 

the proclairation has no relation to the judges of the land- 
oflice, their fees are settled in a different manner, and the 
legality of it does not depend upon any question of preroga- 
tive ; but on the power every owner luis over his property, to 
dispose of it upon such terms, as he thinks proper. The 
advice of the council was not asked on this snbjeet. This 
regulation too you have represented to be as arbitrary as the 
shij^-money assessment, and with equal facility you may prove 
it to be a tax, or a rigadoon. 

"The governor and council were twelve in number, of whom 
two only can be said (I mean with truth) to l^ave any interest 
in the effect of the proclamation. The governor was not to be 
directed by the suffrage of the council ; he was to judge of the 
propriety of their advice upon the reasons they should offer. 
It cannot be asserted (I mean again with truth) that they were 
not unanimous, thongh the citizen has the assurance to affront 
them with the reproachful imputation of being implicit depend- 
ants on one man. The proclamation was the act of the governor 
flowing from liis persuasion of its utility. He had promised, 
puhlicl-hj and solemnly promised thai 'if the prerogative should 
interpose in the settlement of fees, he would take good care to 
act on mature consideration, and what he should Judge to be 
right and just, would be the only dictate to determine his con- 
duct.' He again, as publickly, and solemnly declared that, 
'so clear was his conviction of the propriety, and utility of a 
regulation to prevent extortion, and infinite litigation, if it was 
necessary, instead of recalling, he weuld renew his proclama- 
tion, and in stronger terms threaten all officers with his dis- 
pleasure, who should presume to ask, or receive of the 23eople 
any fee beyond his restriction.' In his proroguing speech he 
again declared that ' He had issued the proclamation solely 
for the benefit of the people, by iiine tenths of whom, he 
believed it was so understood.' But you, Mr. Citizen, have 
asserted, an absolute, direct, impudent, malicious (I will give 
you, as it is iipon paper, a dissyllable) falshood, that he was 
7wt determined by his own judgment, but by the dictate of a 
man whom sometimes you call a clerk, sometimes a register, 



110 rmST CITIZEN axd antilon. 

and sometimes minister, and that nine tenths of the people do 
not believe the jiroclamation issued for the purpose, so pub- 
lickly, so solemnly declared. The contradiction, it must be 
confessed, is direct and pointed, and if advanced on sufficient 
grounds, the veracity, sincerity, and honor of — would be — but 
I know it to be an infamous, imj3udent calumny (character- 
istical of the author of it) prompted by the temerity of ungov- 
ernable malignity. To atone for this insolence, the maxim, 
' the king can do no wrong,' is introduced, and on what 
principle? Not such as would allow an application to 
a — who should happen to be old, or middle-aged, or cir- 
cumspect — He must be ' youthful, unsuspicious, c^'c. <tc.' — 
really this seems to be an innovation, rather arbitrary — legal 
7iiaxi)i)s have been understood to be rather anplia.nt ; however 
as yon can so easily garble moral ones, who will dispute your 
address in modifying the legal '? , Would he but act as he 
should — alas ! would he but — then ' he would be a little god 
below,' and be worshipped accordingly ; something more than a 
king. ' The governor however, you say, is no king ' — but yet 
again you tell us, ' kings have revoked proclamations, and 
therefore, though the governor has affixed his signature, he may 
disavow his act.' Again, ' He is improp)erly called the king's 
ruiiiister, he is rather his representative, or deputy. He forms a 
distinct branch of the legislature, and he has the power of life 
and death,' and as a representative, or deputy, cannot act 
heyo)ul, or out of the capacity of his constituent, or principal, 
you have, Mr. Citizen, clearly proved in your peculiar style, 
that the governor is the representative or deputy of the king, 
because the king cannot execute a judicial office ; and, the 
governor can — a grave refutation of such nonsense about the 
governor's being a king, and not a king, would be, indeed, 
ridiculous. The mean, foolish servility of the intended pallia- 
tive offers an insult to his understanding, whose sincerity, 
veracity, and honor you have so insolently attacked. But to 
return to Serjeant Hawkins, and answer the question which, in 
the triumph of ignorance, you have proposed : ' Have not the 
officers who advised, and the governor who issued the procla- 



GOVERNOR EDEN's ADMINISTRATION. Ill 

mation, set their own rates ? ' No, I have shewn, thej have 
not — jowl law case is nothing to the purpose, or I would 
shew it, not to he law. You may perceive, if not quite blind, 
that I have not by silence admitted the imputation, neither 
have I denied the advice I gave ' as far as I gave it : ' but I 
deny (what your impudence, and mendacity have asserted^ that 
any one man of the council was the dictator of the jDroclama- 
tion, though I avow it to be my opinion, the measure was 
expedient, and legal. I deny what you have asserted, and 
without reserve charge you with having outraged truth with 
the most impudent, and flagitious malice, on the mean base 
motive of engaging the passions of those, whom you have 
studied to delude by a feigned regard for the publick welfare, 
to assist you in the gratification of a narrow, personal, sordid 
enmity. Take this as an answer to all your desultory, base, 
malevolent assertions of the controuling power of a ivicked 
minister, and blush, ('/' you have any sense of shame left. 

''pudet haec opprobria dici, 

Et dici potuisse, S: non potuisse refelli. 

I have been the more direct, and explicit in my disavoM^d, lest 
your unprincipled confidence should cast a blemish upon the 
honour of the other members of the council, whom you aim to 
render contemiJtible, that you may make one man jDublickly 
obnoxious, who, despising the impotence of it, bids defiance 
to all the efibrts of your malice. 

"I alleged in my former letter that the proclamation, b}^ 
restraining the officers, prevented extortion, and recited it at 
large that the reader might form his own judgment ; but, says 
the Citizen, ' it ought rather to be considered as a direction to 
the officers what to demand, and to the people what to pay.' 
This word 'rather'' seems to be a favourite, it does not assert; 
it only squeaks insinuation, what is meant by ' direction ? ' It 
is a vague term, it is applied by the Citizen to the officers, and 
to the people equally, and having been substituted in the place 
of 'restriction, and j^feventive of extortio7i' it is proper to guard 
against deception, by fixing the sense of it ; if it only means 



112 FIRST CITIZEN AND ANTILON. 

pointing out, it is harmless; but why then the substitution? 
If it means order, or command, it is fallacious : for the people 
are not ordered or covunanded. I wish he had carried his 
appeal to the feelings of the people. If oppressed, they must 
feel the oppression — if they are not, let them not be persuaded 
by this political quack, to think that they are. Prudent men 
who possess the blessings of vigorous health, will hardly be 
persuaded to swallow the pill, or draught of an ignorant 
mountebank, avIio has the impudence to pronounce that they 
are distempered, and ought to take his drugs. It is true that 
the lower house called the settlement of fees by proclamation 
'the Ksurpcdion of a right ' and threatened an opposition, and 
their resolves were afterwards extremely violent ; but if the set- 
tlement of fees was lawful, and expedient, it was not to be con- 
trouled by resolves, and a submission to such intemperate 
vehemence would have derogated from the dignity of govern- 
ment, and endangered the constitutional balance of power. 
The other branches of the legislature were as unanimous, and 
clear in an opposite opinion. Other reasons, besides what the 
Citizen has suggested may be assigned for the temporary 
duration of the inspection law. As a regulation it might, 
from an alteration of circumstances, become in every respect 
inconvenient, and the utility of a law, so extensive, and 
important, ought to be established by infallible experience, 
before its perpetuity is ordained. That a similar proclama- 
tion, in 1733, was the occasion of much clamour I believe, but 
not that the clamour was so general, and violent, as it has since 
been, on another topic: resolves have been as vehement, and 
more expressive of ajDprehension, on another occasion, when 
only three members ventured to vote against them ; the number 
that divided against the last resolve, respecting the proclama- 
tion. The Citizen need not go far to have this matter 
explained, and, I imagine, he may be inclined to think resolves 
ought not always to fix men's opinions, since sometimes, they 
may be dictated hj jmssion. His objection, that settling the 
fees is a prejudging of the question, has been answered, and 
besides an appeal to the supreme court of the province will 



GOVERNOR EDEn's ADMINISTRATION. 113 

hardly admit of supposition ; for the sum must exceed X50 
sterling, or 10,000 lb. tobacco, and it is not to be expected, 
that an officer would suffer any one to be indebted to liim, in 
so large a sum. The Citizen seems desirous to be informed, 
how fees are to be recovered — all in good time — if in chancery, 
the Governor, acting upon his own judgment, in this sage 
gentleman's opinion, will deserve to be removed ab offico, and 
he will most cordially wish his removal — weighty opinion — ■ 
tremendous wish ! if a patriot stepping forth, like Hampden, in 
the glorious cause of liberty should be Iniquitously compelled to 
pay an officer's fees, for. services, actually performed, how 
alarming would be the event? The Citizen has thought 
proper to make me say that ' Mr. Ogle met with the most 
violent opposition any Governor ever did, on account of his 
proclamation ' but I must object to this substitution, because 
the fact asserted by him is absolutely false. The opposition 
he met with, and the railings, he despised, flowed from a very 
different source, and, I suspect, the Citizen only affects an 
ignorance of the particular cii'cumsiances. The proclamation 
was not issued by Mr. Ogle, but ' he ' fully atoned, ' says the 
Citizen,' by his ' suhsequent conduct, which was mild and 
equitable, for the oppressions (or errors) of his former admin- 
istration ; ' here again I must object, because the Citizen falsely 
insinuates, that the decree I mentioned was in his firf^t, when 
in fact, it was in his last administration. The opinions of. 
eminent counsel in England, in favour of the proclamation, 
havitig been intimated, a passage in a pamphlet was cited bv 
him to this effect, 'on a question of public concernment, the 
opinions of court lawyers, however respectable for their can- 
dour ought not to weigh more than the reasons adduced in 
support of them, &c. — for they have generally declared that to 
be legal, which the minister for the time being has deemed to be 
expedient' and hence he seemed to infer that the opinions in 
favour of the proclamation should be regarded with suspicion. 
I answered in my former letter, that the cases were entirely 
different, because ' proclamation was no point which the min- 



114 FIRST CITIZEN AJSID ANTILON. 

ister aimed to establish &c.' and what have you replied to this, 
Mr. Citizen ? ' You deny the assertion //' the opinions are in 
favour of the proclamation, because it is a point, which the 
minister of MaryJand aims to establish ' the minister ' of Mary- 
land' pitiful sneaking prevarication — a'rnt you ashamed of 
yourself? 

"The Citizen wishes 'that the opinions of the English 
lawyers in the opposition; would face the day' — for two 
reasons his request will not be complied with — the first, that 
he has no kind of right to make it — second, I have no power 
to grant it, but that I may not seem to be a mere churl, I 
inform him — that besides the attorney, and solicitor general of 
England, Serjeant Wynn and Mr. Dunning were of opinion, 
that the King could lawfully settle the fees of constitutional 
officers in the royal governments, and that this power was 
conferred on the Proprietor of Maryland by the charter, under 
which we derive the power of making laws for our good govern- 
ment. In New York, the fees of officers have been settled by 
the governor, and council, in virtue of the royal commission, 
and the people there (not much inclined to submit to violations 
of their rights) submit to the settlement. By this royal com- 
mission the Governor, with the advice, and assistance of the 
council, was authorized to make a table of fees, and thereby a 
reasonable provision for officers, and in virtue of this commis- 
sion, such table of fees was made, and is the fixed rule, or 
standard, though an act of assembly in New- York for the 
settlement of fees had passed a little time before, and recetved 
the royal dissent — all this Mr. Citizen, has been 'endured' in 
New York, for want of the exertion of men of your principles 
civil, and religious. 

" The short extract from Petit aftords a just specimen of the 
Citizen's candour — the Citizen did not choose to state the 
nature of the proclamations jnentioned in Petit, but has left the 
reader to infer a great deal from his little scraps. To obviate 
this disingenuous purpose, it is necessary to observe, that the 
proclamations complained of 'as altering some points of law, 
and making new ' directed, who should not, and who might be 



GOYERNOR EDEN's ADMINISTilATION. ' 115 

chosen to represent the people, and ordered ' if returns should be 
made contrary to this direction, they should be rejected, and 
warranted an}' person to seize starch, and to dispose, or destroy 
any stufl', etc., and restrained all men, not licensed (by the 
crown) to make starch' — the proclamation made for matter 
directly rejected the precedent session' ordered, that 'houses 
should be built with brick' — the proclamations 'touching the 
freehold livelihood of men ' directed ' the razing and pulling 
down houses, and prohibited them to be rebuilt, and appointed 
the owner's land to be let b}' other men at what price they 
pleased' — former proclamations vouched 'ordering country 
gentlemen out of London, and against buildings' — 'confisca- 
tions of goods, fine, forfeitures, imprisonment, seizure, standing 
in the pillory threatened' — now the reader may make his 
application, without danger of being deceived, and he may not 
improperly, judge too of the Citizen's real patriotism. (D) The 
Citizen it must be allowed, has a happy talent at explanaiion — 
I asked in my former letter, what was meant ' by dragging to 
light' — 'made to feel the resentments of a free people — pun- 
ished with infamy, exile or death — dread of such a fate ' — and 
his ingenuity has proved, nothing more was meant, than a 
removal from office, and a different supposition proceeded from 
the ' conscious guilt of ' a wicked minister ' trembling, and dis- 
mayed ' — despicable fribble, and yet you complain of ridicule — 
' Sarcasms, says he, on personal defects have erer been esteemed 
the sure token of a base degenerate mind ' — but I insist upon 
this exception. ' Where there is an apparent correspondence 
between the form, and the disposition, cum forma, et mores 
consimiles sunt,' when the features and lineaments of the one, 
are directed by the motions, and affections of the other, when 

(D) Proclamations are lawful, or not, according to their subjects. Tiiat 
they have been employed as instruments of tyranny is not to be denied ; 
but they have, too, been expedient to invigorate legal sanctions. Instances 
may be cited of proclamations, particularly such as have affected the 
order, and profession of certain religionists, that have been received Avith 
great popular applause. Eos tamen laedere non exoptemus, qui nos 
laedere non exoptant. 



116 MEST CITIZEN AND ANTELON. 

the countenance does the office of a dial ^^late, the wheels, and 

springs within the machine actuating its muscles. 

"The figure such, as may the soul proclaim^ — 
We pity faults by nature's hand imprest 
But with his miud, Thersites' form's a jest." 

"When an adversary exerts all his luiscJtiecoiis powers, and 
the person assailed attempts to ridicule them ' he gives ' 
according to the Citizen's maxim 'a sure token of a base, 
degenerate mind ' but the extreme mendacity, and malice of 
the assailant are Jusf proofs of his publick spirit — I am as 
little apprehensive of any attack upon my person or house, 
by a party of free men led on by the Citizen, as I am that the 
Egyptian superstition, cultus ^gyptius cercopitheci (the 
worship of a monkey) will succeed the demolition of our 
religious establishment. 

"Dialogue, as he has managed it, is a manner of writing 
very suitable to the tenuity of the Citizen's genius, he takes 
care that his opponent shall always be discomfited, and him- 
self complimented on his victory. In the short one intro- 
duced into his last piece he has very cleverly, disclosed, or 
concealed just so much as answers his main purpose of mis- 
representation : but the officer, in fact, has it in his power, in 
various instances, to receive his fees immediately. If a writ 
be applied for, or a copy of any record, or paper in his 
custody — if a warrant of surx'^y, or patent — if letters testa- 
mentary, or of administration, if an account is to be passed, 
an inventory to be received, a commission to be issued, if the 
examination and passing a certificate, if a survey is to be 
made, certificates of it to be made out etc. &c. the respective 
officers have it in their power to receive their fees immediately 
for their services, and, if not restrained, might oppress, so 
that the Citizen's expedient, 'not pay,' is the 'baseless fabrick 
of a vision ' the officers, who are thus paid, save the expence 
of collection, suffer no loss from insolvencies, and are not put 
to inconvenience from the irregular, or negligent conduct of 
sherirs. 



GOVERNOR EDEN's ADMINISTRATION. 117 

" There is a little miscliievous insiuuatiou of the Citizen, 
which deserves some animadversion : speaking of the affair of 
ship-monej, he says, ' that the judges,' the guardians of law, 
and liberty (' reflect on this, good reader ') gave a corrupt opinion 
— the words, 'reflect on this good reader' — seem to have been 
thrown out to raise a suspicion of other judges. That judges 
have been corrupt, that juries too have been corrupt, that Kings 
have been tyrants, that men liave professed the utmost purity 
of intention, and after they had gained, by the arts of simula- 
tion, the popular confidence, basely sacrificed the rights of the 
people, and that personal enmity has assumed the fair appear- 
ance of publiek virtue cannot be denied : but are all judges, 
all juries to be suspected of corruption^ all kings of tyranny, 
all patriots of venality ? and is every man, professing a regard 
for the publiek welfare to be suspected of a narrow, personal, 
rancorous enmity, because the Citizen's furious temerity has 
laid aside the mask, and betrayed all the turpitude, and 
deformity of the basest, and the blackest malignity ! 

" Notwithstanding your averment, Mr. Citizen, the strong 
probability, on which I founded my opinion, who were con- 
cerned in the unprovoked virulent attacks, contained in the 
papers, still remain in full force. 

"The many instances, in which you have shewn your utter 
disregard of truth in your assertions and of the most disin- 
genuous prevarication is your answers, and explications, render 
your testimony extremely suspicious ; and such is your casui- 
stical ingenuity that all ^possibility of mean cavil and illiberal 
subterfuge must be absolutely precluded, before any credit 
will be due to your averments. 'Advice,' suggestion, 'assist- 
ance ' are not terms of sufficient comprehension — if however, 
when attacked in the dark, I have mistaken the assailant, and 
directed some resentment against a person really not privy to 
nor approving the outrage, it is a strong reason to dissuade 
from these dark attacks, which may involve men, in no manner 
concerned. 

" After all, who is this man, that calls himself a Citizen, 
makes his addresses to the inhabitants of Maryland, has 



118 FIRST CITIZEN AND ANTILON. 

charged the members of one of the legislative branches with 
insolence, because, in their intercourse with another branch of 
the legislature, they proposed stated salaries, and has himself 
proposed a diferent provision for officers ; contradicted the 
most publick, and explicit declarations of the governor, repre- 
sented (dl the council, but o)ie, to be mere fools, that he may 
represent him to be a political parricide ; denounced infamy, 
exile, and death ; expressed a regard for the established church 
of England ? Who is he ? He has no share in the legisla- 
ture as a member of any branch ; he is incapable of being a 
member ; he is disabled from giving a vote in the choice of 
representatives ; by the laws and constitution of the country, 
on account of his principles, which are distrusted by those laws. 
He is disabled by an express resolve from interfering in the 
election of members, on the snme account. He is not a 
protestant. 

"In my former letter I intimated, Mr. Citizen, that the 
Governor's conduct in the proceedings relative to the procla- 
mation had been honored by the royal approbation, and yet 
you have vehemeniJy pronounced, that the proclamation ' wms^ 
not be endured.' Softly ; magnanimous Citizen, softly — you 
have already stretched the skin too much, and raise not your 
voice to so great a pitch of dissonance, as, peradventure, may 
be intolerable. 'Must not be endured!' These are naughty 
words. What then are you to do? Are you to have no 
employment, no amusement? Yes, be employed, be amused; 
but before you resolve upon a plan, consider seriously, what 
you are able, and what you are not able to bear, 

quid ferre recusent, 

Quid valeant humeri 



and, if you are not very perverse, you will follow my advice, 
(though I have shewn what, stripped of disguise you are — 
'stultus in vidiae furore abreptus,' a foolish fellow, hurried 
away by the rage of malice) instead of making yourself ridicu- 
lous, perhaps, obnoxious, by endeavouring to gain the confi- 
dence of the people, who are instructed by the spirit of our, 



GOVERNOR KDEN's ADMINISTRATION. 119 

laws, and constitution, bj the disabilities you are laid under, 
not to place any trust in yoii, wlien tlieir civil, or religious 
rights, may be concerned. My advice to you is to be quiet, 
and peaceable, ;ind with all due application, ^Edificare casas, 
plostello adjungere mures, Ludere par impar, equitare in 
arundine longa, to build baby houses, yoke mice to a go-cart, 
play at even or odd, (or push pin for variety) and ride upon a 
long cane." 

Antilon. 



120 FIEST CITIZEN AND ANTILON. 



CHAPTER 10. 

THIRD LETTER OF FIRST CITIZEN. 



1773. The answer to Antilon's tliird letter was made by Mr. 
Carroll on the 6th of May. It read : 

" Our places are disposed of to men, that are the ornaments of 
their own dignity ; to men that have the welfare of the Kingdom 
wholly at heart, and ivho accept of offices only to do the necessary 
drudgery of the state, and neither to amass estates from their 
services, nor aggrandize any branches of their family : hence it 
Jiappens that England can never he infamous for a Sejanus, ivho 
rose from, the dunghill to grasp all power, and ichose working 
wickedness had generally a double plot, ujjon his prince, and upon 
the people." — True Briton, No. 38. 

With this quotation "First Citizen," began his third letter, 
which continued : 

"The prince who places an unlimited confidence in a bad 
minister, runs great hazard of having that confidence abused, 
his government made odious, and his people wretched : of the 
many instances, which might be brought to confirm the obser- 
vation, none more instructive, can perhaps be selected from the 
annals of mankind, than the story of Sejaniis. We need not 
however have recourse to the history of other nations, and of 
other ages, to prove, that the unbounded influence of a wicked 
minister, is sure to lead his master into many difticulties, and 
to involve the people in much distress ; the present situation 
of this province is a proof of both. 

"It is not my intention to compare Antil on with Sejanus; 
yet whoever has the curiosity to read the character of the latter 
drawn by the masterly pen of Tacitus, and is well acquainted 
with the former, will discover some striking likenesses between 



GOVERNOK EDEN's ADMINISTRATION. 121 

the two. — *Tlie 'animus sui obtegens, in alios criminator' — The 
' juxta adulatio & superbia ' are equally applicable to both. 

"Does it jet remain a secret, who this wicked minister, this 
Antilon, is? Are ye, my countrymen, 'puzzled to find him out? ' 
Surely not; his practices have occasioned too much mischief, 
to suffer him to lark concealed, notwithstanding all his mean, 
and dirty arts, to gain popularity, by which he rose to his 
present greatness, and the indefatigable industry of his tools, 
in echoing his praises, and celebrating the rectitude of his 
measures. 

"In vindication of his conduct, Antilon has not endeavoured 
to convince the minds of his readers by the force of reason, 
but 'm the favourite metlwd of illiberal calumuy, virulent abuse, 
and shameless asseveratioyr to affect their jxissions' — has 
attempted to render his antagonist ridiculous, contemptible, 
and odious ; he has descended to tlie lowest jests on the person 
of the Citizen, has expressed the utmost contemjDt of his 
understanding, and a strong suspicion of his political, and 
religious principles. What connexion,* Antilon, have the latter 
with the Proclamation? Attempts to rouse popular prejudices, 
and to turn the laugh against an adversary, discover the weak- 
ness of a cause, or the inabilities of the advocate, who employs 
ridicule, instead of argument — ' The Citizens patriotism is 
entirely feigned;' his reasons must not be considered, or 
listened to, because his religious 2»^incip)les are not to be trusted 
— Yet if we are to credit Antilon, the Citizen is so little 
attached to those principles, 'That he is most devoutly wishing 
for the event,'' which is to free him from their shackles. What 
my speculative notions of religion may be, this is neither the 
place, nor time to declare ; my political principles ought only 
to be questioned on the present occasion ; surely they are 
constitutional, and have met, I hope, with the approbation of 

*" A mind dark and unsearcliat)Ie, prone to blacken others, alike fawn- 
ing and imperious." If the Latin word advldtio, imj)lies that Sejanus was 
fond of flattery, and inclined to tlattcr, the sentiment is still more apposite 
to our wicked minister, who is known to swallow- greedily the fulsome 
and nauseous praises of his admirers, and to bear a great deal of daubing. 



122 FIRST CITIZEN AND ANTILON. 

my countrymen ; if so, Antilon's aspersions will give me no 
uneasiness. He asks — Who is this Citizen ? — A man, Antilon, 
of an independent fortune, one deeply interested in the pros- 
perity of his country : a friend to liberty, a settled enemy to 
lawless prerogative. I am accused of folly, and falsehood, of 
garbling moral, and legal maxims, of a narrow, sordid and 
personal enmity ; of the first, and second accusations, I leave 
the publick judge, observing only, that my want of veracity 
has not been proved in a single instance. What moral, what 
legal maxims have I garbled '? Point them out Antilon : you 
assert that my censures of your conduct flow from a narrow, 
sordid, and personal enmity ; that I dislike your vices, is most 
true ; that my enmity is rancorous, and sordid, I deny ; you 
have made the charge, it is incumbent on you to prove it; 
should you fail in your proofs, admit you must, on your own 
principles, that you have exhibited the strongest tokens of a 
base mind : but what is evident to all, can receive no additional 
confirmation from your admission. Take this as an answer, 
the only one I shall give, to all your obloquy and abuse. — 
That vituperaii ab improbo summa est laus. The bad man's 
censures are the highest commendations. 

"If it be irksome to be engaged against a writer of a 'weak 
head,' and corrupt heart, the task becomes infinitely more dis- 
gusting when we have to encounter not only the latter vice, 
but likewise the wilful misrepresentations of craft, and false- 
hoods dictated by 'shameless unpudence.' It will be shewn in 
the course of this paper that Antilon is guilty of both charges. 

"The assessment of ship-money, the Citizen has said, was 
a more open, the Proclamation a more disguised, though not 
less dangerous attack on liberty ; it has, I hope, been proved 
already, that fees are taxes, and that the settlement of them 
by Proclamation is arbitrary, and illegal : Antilon has not 
refuted the arguments adduced to prove both propositions ; 
other reasons in support thereof shall be brought hereafter ; 
at present let us consider whether the Proclamation be not a 
disguised, and dangerous attack on liherty. If we attend to the 
time, circumstance, and real motive of issuing tj^e proclama- 



GOVERNOR EDEN's ADMINISTRATION. 123 

tion, they will, I think, evince, beyond all doubt, the truth of 
the assertion. The proclamation came out a few days after 
the prorogation of the assembly, under the colour of prevent- 
ing extortion, l)ut in reality to ascertain what fees should be 
taken from the people by the officers, and after a disagreement 
between the two houses about a regulation of fees by law. It 
would have been too insolent, to have informed the people in 
plain terms ; your representatives would not come into our 
proposals, the governor was therefore advised to issue the 
proclamation for the settlement of fees, adopting, the very 
rates of the late regulation objected to by your delegates, as 
unjust, and oppressive in several instances ; their obstinate, 
and unreasonable refusal to comply with our moderate demands, 
constrained us to recur to that expedient. It would I sa}^ 
have been too daring, to have talked openly in this manner* 
and too silly, to have avowed, that, to cover the dangerous 
tendency of the proclamation, it was cloaked with the specious, 
and pretended necessity of protecting the people from the 
rapacity of officers. This affected tenderness for the people, 
considering the character of the minister, who made a parade 
of it, and has since assigned it as the best excuse of an uncon- 
stitutional measure, was sufficient to awake suspicion, and 
fears. Our constitution is founded on jealousy, and suspicion ; 
its true spirit, and full vigour cannot be preserved without the 
most watchful care, and strictest vigilance of the representa- 
tives over the conduct of administration. This doctrine is not 
mine, it has been advanced, and demonstrated by the best 
constitutional writers ; the present measures call for our closest 
attention to it ; the latent designs of our crafty minister will 
be best detected by comparing them with the open, and avowed 
declarations of government in 1739, on a contest exactly 
similar to the present. The pursuits of government in the 
enlargements of its jJowers, and its encroachments on liberty, 
are steady, patient, uniform, and gradual ; if checked by a 
well concerted opposition at one time, and laid aside, they will 
be again renewed by some succeeding minister, at a more 
favourable juncture." 



124 FIKST CITIZEN AJSID ANTLLON. 

Extract from the votes and proceedings of the assembly 1739. ' 
" Tlie conferrees of the upper house are commanded to 
acquaint the conferrees of the lower house, that thej conceive 
the proprietary's authority to settle fees, ivhere there is no posi- 
tive law for that purpose, to be indisputable, and that they 
apprehend the exercise of such an authority to be agreeable to 
the several instrucfions from the throne to the respective govern- 
ments, and therefore that the upper house cannot but think a 
perpetual law in this case, reasonable and necessary, &c." 

"Compare, my countrymen, the proclamation issued in 1739 
with the present ; compare the language of the conferrees of 
the upper house in 1739, vvith Antilon's arguments, and vindi- 
cation of his favourite scheme ; in substance they are the same. 
Antilon's account of ship-money, I have admitted in the main 
to be true, though not iutirely impartial ; this sentence con- 
veys no insinuation, but what is plain, and easily justified. A 
wi'iter may give a relation of facts generally true, yet by 
suppressing some circumstances, may either exaggerate, or 
diminish the guilt of them, and by so doing greatlj' alter their 
character and complexion. The justice of the remark will 
hardly be denied, and the application of it to the present case 
will evince its utility. Antilon has vented part of his spleen on 
Mr. Hume ; the censured passage is taken from that author, 
acknowledged by a sensible writer, (B) and thorough whig, to 
be an instructing, and entertaining historian. To excuIjDate the 
notorious apologist and myself, it is necessary to observe that 
the words ' levied with justice, and equality ' (not equity as 
cited by Antilon) mean, the tax was equally divided among, or 
assessed upon the subjects without favour and affection to 
particular persons ; that the imposition, though applied to a 
good and publick use, was contrary to law, the historian has 
acknowledged in the most forcible, and express words. 

" Has the Citizen anywhere insinuated, that the assessment 
of ship-money was legal ? Has he not expressly declared, 

(B) Daiues Barrington — Observations on the statutes chiefly the more 
ancient. 



GOVERNOR EDEN's ADMLNLSTEATION. 125 

that he does not mean to excuse that assessment ? That the 
conduct of Charles will admit of no good apology '? Yet that 
there were some appearances in his favour, the passages 
already quoted, candid men, I think, will admit, if not as a 
proof to convince, at least as an inducement to incline them to 
that opinion ; mine, I confess, it is, and I make the acknowl- 
edgment, without fear of incurring the odious imputation of 
abetting arbitrary measures, or of being a friend to the 
Stuarts. 

" What means the insinuation, Antilon, conveyed in this 
sentence 'The appellation "tyrant" has I suspect rubbed the 
sore.' Your endeavours to defame, excite only pity, and con- 
tempt ; your heaviest accusations, thank God, have no better 
foundation than your own suspicions. But to return, I again 
assert, that notwithstanding all the acts ascertaining the sub- 
•jects' rights, cited in your last admirable, and polite perform- 
ance, that the boundaries between liberty and prerogative were 
far from being ascertained in Charles's reign, with that pre- 
cision, and accuracy, which the subsequent revolutions, and 
the improvements our constitution in later times have intro- 
duced. (C) I must trouble my readers with a few more quota- 
tions from the obnoxious historian above mentioned, submitting 
the justice of his observations, and the inference drawn from 
them to their decision, and better judgment. 

" ' Those lofty ideas of monarchical power ivhich were com- 
monly adopied, durhig that age and to ivhich the ambiguous nature 
of the English constitution gave so plausible an appearance, were 
firmly riveted in Charles.' Again, speaking of illegal impris- 
onment, ' But the Kings of England (says he) who had not 
been able to prevent the enacting these laws, (in favour of per- 
sonal liberty) had sufficient authority, when the tide of liberty 
was spent, to hinder their regular execution, and they deemed 

(C) "Tlie latter years, says Blackstone, of Henry VIII. were the times of 
the greatest despotism, that have been known in this island, since the 
death of William the Norman : the prerogative, as it then stood by com- 
mon law (and much more when extended by act of parliament) being too 
large to be endured in a land of liberty." 



126 FIRST CITIZEN AKD ANTILON. 

it suj)erfluous to attempt the formal repeal of statutes, which 
they found so many expedients, and pretences to elude.' 

" ' The imposition of ship-money (the same historian remarks) 
is apparently one of the most dangerous invasions of national 
privileges, not only which Charles was ever guilty of, but which 
the most arbitrary princes in England, since any liberty had 
been ascertained to the people, had ever ventured upon.' He 
subjoins in a note, 'It must however be allowed, that Queen 
Elizabeth ordered the seaports to fit out ships, at their own 
expence, during the time of the Spanish invasion.' Elizabeth 
treated her parliaments with haughtiness, and assumed a tone 
of authority in addressing those assemblies, which even the 
tyrant Charles did not exceed : — her father governed with 
despotic sway. To these opinions, and unsettled notions of 
the kingly power, and to the prejudices of the age, candour 
perhaps will partly ascribe the determination of the judges in 
favour of ship-money, and not solely to corruption. 

" The Citizen has said, ' that the revoluiiov rather hrou(/ht 
about, than foUoved Kui(/ James's ahdlcation of the crown.'' The 
assertion is warranted by the fact. James's endeavours to 
subvert the establishment of church and state, and to intro- 
duce arbitrary power, occasioned the general insurrection of 
the nation in vindication of its liberties, and the invasion of 
the Prince of Orange, soon afterwards crowned King of Eng- 
land. James, disspirited by the just, and general desertion of 
his subjects, and fearing, or pretending to fear violence from 
his son in law, withdrew from the kingdom ; his withdrawing 
was what properly constituted his abdication of the crown ; 
his tyrannical proceedings were the cause indeed of that abdi- 
cation, and voted together with his icitlulrawing, an abdication 
of the government ; till that event the revolution was incom- 
pleat. Will any man, except Antilon, or one equally pre- 
judiced, infer from the last mentioned quotation, that the 
Citizen intended to cast any reflection on the revolution, to 
represent it as an unjust act of violence, or that he does not 
approve the political principles of those, by whom it was 
principally accomplished ? — I shall now consider Antilon's 



I 

GOVERNOR EDEN's ADMINISTRATION. 127 

main argument in support of the proclamation, first reducing 
it into a syllogism. 

" ' Taxes cannot be laid but by the legislative authority ; but 
fees hav© been laid by the separate branches thereof; there- 
fore fees are not taxes.' 

" I deny the major, Mr. Antilon, in the latitude laid down 
by you, but admit it with this restriction, saving, in such cases 
as are warranted by long, immemorial, and uninterrupted 
usage. The very instances adduced in your paper are an 
exception to the general rule. The two houses of parliament 
have separately settled fees, as I said before, b}- the usage, 
custom, and law of parliament, which is part of the law of the 
land. 

" ' The judges in Westminstur-hall have setfleJ fees,' you say, 
without defining what you mean by a settlement of fees in 
this instance : your inference, ' therefore a suiiilar poirer is vested 
i)t the yoveriwr (f tliis jirovince/ I deny. The inference will not 
be granted, unless you prove, that the King by his sole 
authority, contrary to the express declaration of the com- 
mons, has settled the fees of ofiicers belonging to the courts 
of law, and equity, in Westminster-hall, that is, hath laid new 
fees on the subject, at a time when they were no longer paid 
out of the royal revenue, but taken out of the pockets of the 
people. The fees of officers have been established for many 
years past in this province by the legislature, and the act 
establishing them was made temporary, that on a change of 
circumstances an alteration of the fees, if expedient, should 
take place ; that this was the sole motive of making the inspec- 
tion law temporary, the Citizen has not asserted, nor has 
Antilon denied it to be one of the motives. An inspection of 
the votes and proceedings of assembly in 1739 will evince, that 
the principal reason of giving a temporary existence to that 
act was to alter, and correct the table of fees on the expira- 
tion of it. 

" ' 31 May 1739. — The conferrees of the uj^iDer house 
acquaint the conferrees of the lower house, that the upper 



128 FIRST CITIZEN AND ANTILON- 

house could agree to no law to establish officers' fees, but what 
should be perpetual, and were ordered not to proceed to con- 
sider of any fees, till the sense of the lower house on that 
point should be known.' 

"'2 June 1739. — This house (the lower) having taken into 
consideration the report of their members appointed conferrees 
concerning the officers' fee-bill, and the proposal made by the 
conferrees of the upper house, of making that bill a perpetual 
act, do unanimously agree, that it would be of the most dan- 
gerous and destructice consecjuence to the people of this province 
to make such act perpetual.'' 

" Judge now reader what was the principal intention of the 
delegates in making the inspection law temporary; but if fees 
may be lawfully settled by proclamation, ' when there happens 
to he no prior provision, or estahlishment of them hy law,' then 
may the fees originally settled- by a temporary act, be upheld 
by prerogative, and made perpetual, and the province be left 
exposed to the same dangerous, and destructive consequences, 
which were apprehended from a perpetuity of the law. 

"Antilon asserts, 'That the Citizen has been constrained to 
admit, that the judges in England have settled fees:' This 
assertion I must take the liberty of contradicting; if the 
reader will be at the trouble of turning to the Citizen's last 
paper, he will there see, that the Citizen, after quoting Antilon's 
words, ' The courts of laiv and equity in. Westminster-hall Jiave 
likewise settled fees,' asks, by what authority? 'Antilon, says 
he, has not been full, and express on this point ' — ' Admitting 
even, (continues the Citizen) that the chancellor, and judges 
have settled fees, by virtue of the King's commission, at the 
request of the house of commons, without the sanction of a 
statute, yet the precedent by no means applies to the present 
case.' — Is this being constrained to admit that the judges in 
England have settled fees ? Once for all, Antilon, I must inform 
you, that I shall never admit your assertions, barely on the 
strength of your ipse dixits, unsupported by other proof; I 



aovERNOR eden's administeation. 129 

perceive jour drift, but I know my man, and will not suffer 
myself to be intangled in liis snares. 

" Vane ligur, frustraque animis elate superbis, 
Nequiequam patrias tentasti lubricus artes." 
" Proud Antilon, 



On others practice thy deceiving arts; 
Thin stratagems, and triclis of little hearts 
Are lost on me." 

" ' The judgeii in Westininsier-hall haot settled fees. ' A 
full enquiry into this matter, I am inclined to believe, would 
expose Antilou's disingenuity, and shew liow inconclusive his 
inference is — ' Therefore the Governor may settle fees' that is, 
impose fees on the inhabitants of this province. It has been 
already observed, that the King originally paid all his officers, 
and that nothing can be more consistent with the spirit of our 
constitution, than that he, who pays salaries, should fix them. 
' Fees are certain perquisites allowed to officers, who have to 
do with the administration of justice, as a recompence for theii- 
labour, and trouble, and these are either ascertained by acts 
of parliament or established by ancient usage, which gives 
them an equal sanction with an act of parliainent. '(D) Coke in 
his comment on Littleton, sect. 701, observes, that it is pro- 
vided by the statute of Westminster 1st, that no sheriff, or any 
other minister of the King, shall take any reward for doing 
his office, but that which the King alloweth. That the subse- 
quent statutes having permitted fees to be taken in some 
instances, under colour thereof, abuses had been committed by 
officers : but that they caimot take fees, but such as are given 
by act of Parliament. 'But yet such reasonable fees as have 
been allowed by the courts of justice of ancient time to inferior 
ministers, and attendants of courts for their labour and attend- 
ance, if tliey be asked and taken of the subject, is no extortion.' 
It does not appear to me, that the judges have ever imposed 
new fees by their sole authority. Hawkins says, ' the chief 

(D) Bacon's Abridg. 2d Vol. 
9 



130 FIRST CITIZEN AND ANTILON. 

clanger of oppression is from officers (E) being left at liberty to 
set their onni rates, and make their ouni demands,' therefore the 
Imv has authorized the judges to settle them. 

"Wliat law, common, or statute, has either empowered the 
fudges to impose new fees ? Antilon asks, how are these settle- 
ments, and the admission of their legality (take notice, reader, I 
have not admitted their legality) to be reconciled with the 
position, that fees are taxes ? Before you can reasonably expect 
an answer to this question, it is incumbent on you, Antilon, 
first to fix a certain, and determinate meaning to a seitlement of 
fees hy the judges, and to explain in what manner, upon what 
■occasions, and at what time, or times, the judges have settled 
fees ; then shall we have some fixed, and certain notion of those 
settlements. After you have taken all this trouble, the infor- 
mation may be pleasing (man is naturally curious and fond of 
having mysteries unfolded) but the inference, ' Therefore, the 
(/overnor may legally impose fees hy his sole authority,' will be 
rejected for this plain and obvious reason. Fees in this 
province have been generally settled by the legislature ; so far 
back as 1C38, we find a law for the limitation of officers' fees ; 
in 1692, the governor's authority to settle fees was expressly 
denied by the lower house ; it was voted unanimously by that 
house, ' That it is the undoubted right of the freemen of this 
2)rovince not to have any fees imposed upon them but by the 
consent of the freemen in a general assembly.' — The speaker of 
that house attended by several members went up to the council 
chamber, and informed the governor, and members thereof, 
'That no officers' fees ought to be imposed upon them, but by the 
consent of the representatives in assembly, and that this liberty 
was established and ascertained by several acts of parliament, 
the authority of which is so great, as to receive no answer, but by 

(E) Antilon has acknowledged, that two counsellors were interested in the 
settlement of fees : he is, perhaps, one of them : he has also acknowledged, 
that he advised the proclamation as expedient and legal : he has held up 
the proclamation as the standard, by which the courts of justice are to be 
guided in awarding costs : if all this be true, has he not endeavoured to 
set his own rates? and make his own demands V 



GOVERNOR EDEN's ADMINISTRATION. 'IBl 

repeal of the said statutes, and produced the same with several 
other authorities ; to which the governor's answer was, that his 
instructions from his majesty were to lessen, and moderate the 
exorbitancy of them, and not to settle them ; to which Mr. 
Speaker replied that they were thankful to his majesty for 
the same, but withal desired that no fees might be lessened or 
advajtced but by the consent of the assembly, to which the 
governor agreed.' An act was passed that very session for 
regulating oiScers' fees. 

"Here was a formal relinquishment of the claim to settle fees 
by prerogative ; from that day to this, the claim has been con- 
stantly opposed by the representatives of the people, and in 
consequence of that oj)positiou, laws have been made from 
time to time for the limitation of officers' fees ; these laws 
ought to be considered, as so many strong, and express denials 
of the proprietary's authority to settle fees, and as so many 
acknowledgments on the part of government of its illegality. 
Precedents, I know, have been brought to shew, that the 
j)ower hath been exercised ; so have many other unconstitu- 
tional powers ; the exercise doth not prove the right, it proves 
nothing more, than a deviation from the principles of the con- 
stitution in those instances, in which the power hath been 
illegally exercised. Precedents drawn from the mere exercise 
of a disputed authority, so far from justifying the repeated 
exercise of that authority, suggest the strongest motive for 
resisting a similar attempt, since the former temporary, and 
constrained acquiescence of the people under the exertion of a 
contested prerogative is now urged as a proof of its legality. 
As precedents have been mentioned, their ])roper use, and 
misapplication, cannot be better displayed, than by a quotation 
from the author of the considerations. After 23erusing the 
passage with attention, the reader, I think, will be disposed to 
treat Antilon's argument drawn from the precedent of New 
York, with great contempt, perhaps, with some indignation, 
should he have reason to believe, that the considerations were 
wrote by this ver}^ Antilon. ' When instances are urged as an 
authoritative reason for adopting a new ' (or an illegal measure, 



132 FIRST CITIZEN AM) ANTILON. 

the reason is applicable to either) * they are proved to be more 
important from this use of them ' (the countenance and support 
they are made to give to arbitrary proceedings) ' and ought 
therefore to be reviewed with accuracy, and canvassed with 
strictness ; what is proposed, ought to be incorporated with 
what has been done, and the result of both stated, and consid- 
ered as a substantive original question, and if the measure 
proposed is incompatible with the constitutional rights of the 
subject, it is so far from being a rational argument, that con- 
sistency requires an adoption of the proposed measure, that 
on the contrary, it suggests the strongest motive for abolishing 
the precedent; when therefore an instance of deviation from 
the constitution is pressed, as a reason for the establishment 
of a measure striking at the root of all liberty ; though the 
argument in inconclusive, it ought to be useful. Wherefore, if 
a sufficient answer were not given to the argument drawn from 
precedents, by shewing that none of the instances adduced are 
applicable, I should have very little difficulty in denying the 
justice of the principles, on which it is founded: what hath 
been done if (rronfiful confers ho right to repeat it ; to justify 
oppression and outrages by instances of their commission, is 
a kind of argument, which never can produce conviction, 
though it may their acquiescence, whom the terror of greater 
evils may restrain ; and thus the despotism of the east may be 
supported, and the natural rights of mankind trampled under 
feet. The question of right therefore doth not depend upon 
precedents, but on the principles of the constitution, and hath 
been put on its proper point already discussed,' whether the 
prerogative may lawfully settle fees in this province. Antilon 
has laid great stress on the authority of the English judges to 
settle fees, and from that authority, has inferred a similar 
power in the governor of this province ; he has not indeed 
explained, as it behoved him to do, the origin, nature, and 
extent of that authority, nor has he shewn, in what manner it 
has been exercised. 

" No man, I believe, hath a jn-ecise, and clear idea of a 
settlement of fees by the judges, from what Antilon has 



GOVERNOR EDEN's ADMINISTRATION. 133 

hitherto said on that subject. What does it mean ? I ask 
again, does the authority to settle, imply a power to lay new 
fees ? The judges it is allowed cannot alter, or increase 
the old fees ; they have not therefore, I presume, a discre- 
tionary power to impose ueiv ; if their authority should extend 
to the imposition of rieiu fees, wdiy in a variety of instances, 
have fees been ascertained by act of parliament? Where was 
the necessity of enacting those statutes, if the judges were 
empowered by Jaw to settle, that is, to impose fees by their 
own, or delegated authority ? Here seem to be two distinct 
powers in the same state, capable of the same thing; if 
co-equa], they may clash, and interfere with each other ; if 
the one be subordinate to the other, then no doubt, the power 
of the judges must be subject to the power of the parliament, 
which is, and must be supreme ; if subject to, it is controula- 
ble by parliament. The parliament, we all know, is composed 
of three distinct branches, independent of, yet controuling, 
and controuled by each other ; no law can be enacted, but by 
the joint consent of those three branches ; now, if in case of 
disagreement between them about a regulation of fees, the 
power of the judges may step in, and supply the want of a 
law, then may the interposition, and authority of parliament 
in that case be rendered useless, and nugatory. Suppose the 
leading members of one branch to be deeply interested in the 
regulation, that branch will probably endeavour to obtain, if 
it can, an exorbitant provision for officers ; the other may think 
the provision contended for, too great, they disagree ; the fee- 
bill miscarries ; the power of the judges is now left at liberty 
to act, a necessity for its acting is insisted on, and they per- 
haps establish the very fees, which one branch of the legisla- 
ture has already condemned as unreasonable and excessive. 
Suppose the judges should liold their seats during pleasure, 
suppose them strongly prejudiced in favour of government, 
might not a bad administration, if this power were submitted 
to, obtain what establishment it pleased for its officers? 
Should the judges discover a disinclination to favour the 
views of government, the removal of the stubborn, and the 



134 FIRST CITIZEN AND ANTILON. 

putting in of others more compliant, would overcome that 
difficultj, and not only secure to government for a time, the 
desired establishment of fees, but render that establishment 
perpetual. That a bold, and profligate minister will embrace 
the most barefaced, and shameful means to carry a point, the 
creation of twelve peers in one day, 'on the spur of the occa- 
sion,' is a memorable proof. A settlement of fees by procla- 
mation, I still presume to assert, notwithstanding the subtile 
efforts of Antilon to prove the contrary, to be an arbitrary, 
and illegal tax, and consequently thus far similar to the ship- 
money assessment : my Lord Coke's authority warrants the 
assertion and his reasoning will support the principle ; all new 
offices erected with new fees, or old offices with new fees, are 
within this act (de tallagio non concedendo) that is, they are a 
talliage or tax upon the people. 

" I never asserted, that our offices relating to the administra- 
tion of justice were not old and constitutional; but I have 
asserted, that we have no old, and estahlished fees : that* fees 
settled by proclamation, are new fees, and that consequently 
they come within the act, and Coke's exposition of it ; and 
therefore, as new fees are taxes, and taxes cannot be laid but 
by the legislature, except in the cases heretofore mentioned; 
fees settled by one, or two branches thereof, are an unconstitu- 
tional and illegal tax. What Coke observes, says Antilon, in 
his comment on the statute (de tallagio non concedendo) 'may 
be fully admitted, without any proof, that every settlement of 
fees is a tax ; ' therefore, I presume, some settlement of fees is 
a tax, what settlement of them, Antilon, is a tax? If fees 
settled by act of parliament are taxes, why should they cease 
to be taxes, when settled by the discretionary jDower of the 
judges ? if when settled by the latter authority, they come not 
within the strict legal definition of a tax, are they on that 
account less oppressive, or of a less dangerous tendency? 
According to Antilon, the words, ' new fees are not to be annexed 
to old offices,' mean, ' that the old and, estahlished fees are not to 
be augmented or altered hut by act of parliament ; ' yet in 'the old 
(>ffi£es, fees may be settled.' That is, if I comprehend him 



GO^-ERNOR EDEN's .ADMINISTRATION. 135 

right, iitir fees may be established by the judges, \for necessary 
neroices, ivhen there happeths to he no prior provision, made by hvia 
for tliose sercices.' 

"How is this interpretatiou of my Lord Coke's comment to 
be reconciled with his position, that fees cannot be imposed 
biit by act of parliament, and with the doctrine laid down in 
2d Bacon already recited V The legality of the proclamation, 
Antilon has said, is determinable in the ordinary judicatories ; 
does it follow therefore, that the measure is constitutional? 
On the same principle the assessment of ship-money would 
have been constitutional; for the legality of that too was 
determinable in the ordinary judicatories, and it was actually 
determined to be legal by all the judges, four excej)ted ; if in 
that decision the parliament, and people had tamely acquiesced, 
proclamations at this day Avould have the force of laws, indeed 
would supersede all law. 

"Antilon's next argument in support of the proclamation is 
derived from the necessity of ascertaining precisely by the 
judgment, or final decree, the costs of suit, which are some- 
times wholly, sometimes partly composed of the lawyers, and 
officers' fees. If fees are taxes, and taxes can be laid by the 
legistatiire only, that necessity (admitting it for the sake of 
argument to exist) will not justif}^ the settlement of fees by 
proclamation, who is to be judge of the necessity'? Is the 
govei'nment ? then is its power unlimited, who will pretend to 
say, that the necessity is urgent, and invincible? Such a neces- 
sity only, can excuse the violation of this fundamental law ; 
' TJie subjects shall not be taxed but by the consent of their repre- 
sentatives in jjarliainent.' 'If necessity is the sole foundation 
of the dangerous power ' of settliug fees by prerogative, when 
there is no prior establishment of them by law, ' it behoves 
tliose, who advise the exercise of that power, not only to see 
that the necessity is indeed invincible, but that it has not been 
occasioned by any f and t of their own; for, if it is not the one, 
the act is in no wa}' justifiable, and if the other, that very 
necessity, which is the excuse of the act, will be the accusation 
of those, who occasioned it, ami in place of being justifiable in 



136 FIRST CITIZEN AND ANTILON. 

their conduct, they must be chargeable, first, with the blame of 
tJie necessity, and next with the danger of the violation of the 
law, as the drunken man who commits murder, justly bears 
the guilt both of inebriation and bloodshed. (F) To whom is the 
blame of the supposed necessity, now plead as an excuse for 
acting against law, imputable? Is it not to those, who rather 
than submit to a regulation by law of their fees, and to an 
apprehended diminution of income, chose to shelter themselves 
under the wings of arbitrary prerogative, and to expose their 
country to all the difficulties, and distress, which the wanton 
exercise of an unconstitutional power was sure to introduce ? 

"Who, the least acquainted with the arguments in favour 
of ship-money, and the disperishig poicer, does not perceive 
this part of Antilou's defence to be a repetition, and revival of 
those exploded, and justly odious topics tricked off in a new 
dress to hide their deformity, the better to impose on the 
unthinking and unwary. Antilon asserts, that the Citizen 
from some proceedings of the house of commons, infers a 
power in the commons ^ alone,' to settle the fees of oflicers 
belonging to the courts of law. Want of accuracy in the 
expression has, I confess, given a colour to the charge ; but 
Antihm to justify his construction of the sentence referred to, 
and to exclude all doubt of the Citizen's meaning, has inserted 
ihQ word ^ alone.' 

" ' If the commons, says the Citizen, had a right to enquire 
into the abuses committed by the officers of the courts, they had, no 
doubt, the poiver of correcting those abuses, and of establishing ilie 
fees in those courts, Imd they thought proper ' — he should have 
added (to j^ievent all cavil) — ivith the concwrence of the king 
and lords. This was really the Citizen's meaning, though not 

(F) Quoted from a pamplilet intitled a " a speech aacainst the suspending, 
and dispensinji prerogative" supposed to be written by my Lord Mans- 
field. Mr. Blackstone speaking of the very measure, which occasioned 
that speech, observes, " A prochimatii'n to lay an embargo in time of peace 
upon all vessels laden with wheat, (though in the time of a publick 
ecarcity) being contrary to law — the advi.-ers of such a proclamation, and 
all persons acting under it found it necessary to be idemnitied by a special 
act of parliament, 7 Geo. 8d. C. 7." 



GOVERNOR EDEN's ADMINISTRATION. 137 

expressed ; his whole argument should be considered, and 
taken together ; he endeavours all along to prove, that fees are 
taxes, that taxes cannot be laid but by the legislature, except 
in the instances already mentioned, which, as I said before, 
are excef)tions to the general rule. The extracts from the 
report of the committee were adduced to shew, what abuses had 
crept into practice by othcers charging illegal fees; what 
oppressions the encroaching spirit of office had brought upon 
the subject; and the controuling power of the house of 
commons over the officers of the courts of justice. They 
resolved, that all the fees should be fixed, and established by 
'authority, that they should be registered in a book, and 
inspected gratis, that the rates being pul licklj' known, officers 
might not extort more than the usual, ancient, legal, and 
established fees. It does not appear, that the commons 
authorized the judges to create neiv fees, or to alter, and 
increase the old, but insisted, that a table of all the fees 
should be made out under the inspection of the judges, and, 
to give it a greater sanction, should be signed and attested by 
them, to prevent, no doubt, the secret and rapacious practices 
of officers. That fees are taxes, I hope, has been proved ; but 
should it be granted, that ihey are not taxes, because they 
have been settled in England by other authority, than the 
legislature (which I do not admit, if by a settlement of fees 
under the authority of the judges, an imposition of new fees be 
meant) still I contend, tljat a settlement of fees in this province 
by proclamation is illegal, and unconstitutional, for the reasons 
already assigned ; to which the following may be added. If a 
table of fees had been framed by the house of commons, con- 
firmed by act of parliament, and all former statutes relating to 
fees had been repealed, and a temporary duration given to the 
new act, that at its expiration, corrections and amendments (if 
expedient) might be made in the table of fees, if in conse- 
quence of a disagreement between the branches of the legisla- 
ture about those amendments, the law had expired, and the 
commons had resolved, that an attempt to establish the late 
rates by proclamation would be illegal, and unconstitutional* 



138 FIRST CITIZEN AXD ANTILON. 

.would any minister of Great Britian advise liis sovereign, to 
issue bis proclamation, under colour of preventing extortion, 
but in reality for the very purpose of establishing the contested 
rates ? If a minister should be found daring enough to adopt 
the measure, a dismission from office might not be his only 
punishment, although he should endeavour to justify his con- 
duct upon legal principles, in the following manner. 

"The same authority distinct from the legislative, that has 
settled, may settle the fees, when the proper occasion of 
exercising it occurs : the proper occasion has now presented 
itself, we have no law for the establishment of fe^s ; some 
standard is necessary, and therefore the authority distincf 
from the legislative, which used to settle fees, must interfere, 
and settle them again ; necessity calls for its exertion, and it 
ought to be active ; recourse, I allow, should not be had to its 
interposition, but in a case of the utmost urgency. 

"Nee deus intersit nisi dignus vindice nodus. 
Nor let a god in person stand display'd, 
Unless the labouring plot deserve his aid." 

" Such reasoning would not screen the minister from the 
resentment of the commons : they would tell him, that the 
necessit}, ^Tlie tyrant's plea,' was pretended, not real, if real, 
that it was occasioned by his selfish views, which prevented 
the passage of a law, for the settlement of fees ; they would 
perhaps assert, that a power distinct from the legislative, 
unless authorized by the latter, had never attempted to impose 
fees, since they began to be paid by the people ; they might 
possibly shew, that a settlement of fees by the judges, does not 
imply an authority in them to impose uew fees ; if it should, that 
the power is unconstitutional, and ought to be restrained ; they 
might contend that a settlement of fees by the judges, was 
nothing more than a publication under their hands, and seals 
of such fees, as had been usually, and of ancient time received 
by the officers of the courts ; that the publication by authority 
was made, to prevent the rapacious practices of officers ; they 
would probably refer the minister to my Lord Coke, who says 
expressly — that, while officers 'could take no fees at all for 



GOVEENOB EDEN's ADMINISTRATION. 139 

doing their office but of the King, then had thej no colour to 
exact anything of the subject, who knew, that they ought to 
take nothing of them, but when some acts of parliament, 
changing the rule of the common law gave to the ministers of 
the King, fees in some particular cases to be taken of the sub- 
ject, abuses crept in, and the officers and ministers did offend 
in most cases, but at this day, they can take no more for doing 
their office, than have been since this act allowed to them hy 
autlioritij of parliament.'' (Westminster 1st.) 

"But let us leave fiction, and come to reality; What will 
tJie delegates of the people at their next meeting say to (mr 
minister, this Antilon, this enemy to his country, (G) this bashaw — 
who calls a censure of his measures, arrogance, and freedom 
of speech, presumption? — Thty will probably tell him, you 
advised the proclamation, with you it was concerted in the 
cabinet, and by you brought into council ; your artifices imposed 
on the board, and on the Governor, and drew them into an 
approbation of a scheme, outwardly specious, and calculated, to 
deceive ; you have since defended it upon principles incompa- 
tible with the freedom, ease, and prosperity of the province. 
If your endeavours should prove successful, if the proclama- 
tion sh(juld be enforced, we shall never have it in our power to 
correct the many glaring abuses, and excessive rates of the 
old table, adopted by the prcjclamation, nor to reduce the 

(G) Voted so by the lower house. Autilou seems to make very light of 
those resolves, a wicked minister is never at a loss to find out motives, to 
which he may ascribe the censure and condemnation of his conduct, these 
he will impute either to passion, to the disappointment of a faction, or to 
rancorous and personal enmity ; jhowever, if the proclamation is illegal, 
and of a dangerous tendency, the votes alluded to, so far from being justly 
imputable to any of those causes, ought to be deemed the result, and duty 
of real patriotism. Antilon has compared the votes of a former lower 
house against certain religionists, to the late votes against the adviser of 
an unconstitutional measure. The unprejudiced will descern a wide 
difference between the two proceedings, but a review of the former would 
answer no good purpose, it might perhaps rekindle extinguished animosi- 
ties; of that transaction, therefore, I shall say no more than — 

" Meiitiniiihus, et ignuncimunr 

" We remember, and forgive." 



140 riKST CITIZEN AJS'D ANTILON. 

salaries of officers, which greatly overpay their services, and 
give an influence to government, usually converted to sinister 
jjurposes, and of course repugnant to the general good. 

"The monies collected from the people, and j)aid to ofiicers, 
amoiint annually to a large sum ; ofiicers are dependent on, 
and of course attached to government ; power is said to follow 
property, the more, therefore, the property of officers is 
encreased, the greater the influence of government will be ; 
fatal experience proves it already too great. The power of 
settling fees by proclamation is utterly inconsistent with the 
spirit of a free constitution ; if the proclamation has a legal 
binding force, then will it undoubtedly take away a part of the 
l^eople's property without their consent. 'Whatever another 
may rightfully take from me without my consent, I have 
certainly no proj^erty in,' (H) — if you render property thus 
insecure, you destroy the very life, and soul of liberty. — What 
is this power, or prerogative of settling fees by proclamation, 
but the mere exertion of arbitrary will? — If the supreme mag- 
istrate may lawfully settle fees by his sole authority, at one 
time, why may he not increase them at some other, according 
to his good will, and pleasure? (I) what boundary, what barrier 
shall we fix to this discretionary power? Would not the 
exercise of it, if submitted to, preclude the delegates of the 
people from interfering in any future settlement of .'ees, from 
correcting subsisting abuses, and excesses, or from lowering 
the salaries of officers, when they become too lucrative? — It is 
imagined, the salaiies of the commissary, and secretary, from 
the increase of business, will in process of time, exceed the 
appointments of the governor ; does not this very circumstance 
point out the necessity of a reduction? — But if the authority 
to regulate ofiicers' fees, Avith the concurrence of the other 
branches of the legislature, should be wrested from the lower 
house. What expectation can we ever have, of seeing this neces- 
sary reduction take place ? 

(H) Mollyneux case of Ireland stated. 

(I) Fees were actually increased by proclamation in 1789 on the appli- 
cation of several sheriffs. 



GOVERNOR EDEN S ADMINISTRATION. 141 

" ' That questions ought not to be prejudged, says Antilon, is 
anotlier of tlie Citizen's objections ' here again he wilfully 
misrepresents the Citizen's meaning. 

"The passage in the Citizen's last paper alluded to by 
Antilon is this : — ' The governor it is said with the advice of 
his lordship's council of state, issued the proclamation : three 
of our provincial judges are of that council, they therefore 
advised a measure, as proper, and consequently as legal, the 
legality of which, if called in question, they were afterwards 
to determine ; is not this in some degree prejudging the ques- 
tion?' Antilon talks of precedents, and established rules; 
the Citizen says not a word about them, his meaning is too 
plain to be mistaken, without design. The council, it has 
been said, advised the proclamation, the judges therefore, who 
were then in council, and concurred in the advice, thought it a 
legal measure ; the legality of it may hereafter be questioned ; 
as judges of the provincial court, they may be concerned in 
the determination of the question ; Is there no impropriety in 
this proceeding ? If they should determine the proclamation 
to be illegal, will they not condemn their former opinion? 
when they advised the proclamation, they no doubt, judged it 
to be, not only 'expedient' but legcd: possibly, the decision of 
this controversy may rest ultimately with the members of the 
council, who constitute the court of appeals ; these gentlemen, 
it seems, unanimously concurred in advising the proclama- 
tion. 'Is not this to (Dificlpate questions he/ore they come to them 
through their reguhir rhaimeJ, to decide first, and hear after- 
wards ' "" (K) of the twelve counsellors, says Antilon ' Two only 
were interested ' — Suppose a suit to be brought before twelve 
judges — two of Avhom are plaintiffs in the cause, and these two 
should sit in judgment, and deliver their opinions, would not 

*" Whether any officer has been guiltj- of extortion, is a question, which 
neither your nor our declaration ought to prejudicate; but that your 
declarations held out to the publick would have, in no small degree, this 
effect, can hardly be doubted, and on our part particularly, such a declara- 
tion would be the more improper, the last legal appeal in this province 
being to us; it would be to anticipate questions, before they come to us 
through their regular cliannel, to decide first, and hear afterwards." 
Vide upper house message 20th November, 1770. 



142 FIRST CITIZEN AND ANTILON. 

the judgment, if given in favour of the plaintiffs, be void on 
this principle, that no man ought to he Judge in his own cause* 
such proceedings being contrary to reason and natural equity? 
Two counsellors only, it seems, were interested, that is imme- 
diately interested? But might not others be swayed by a 
remote interest? Are the views of thinking men confined to 
the present hour ? Are they not most commonly extended to 
distant prospects? If one of the iiiterested< counsellors, from 
his superior knowledge of the law, and constitution, and from 
the confidence reposed in his abilities, should have acquired 
an uncommon ascendant over the council, may we not ration- 
ally conclude, that his ojjinion would have great weight with 
those, who cannot be supposed equally good judges of the law, 
and constitution ? Supposing this interested counsellor to be an 
Jionest man, ought not his opinion to have the greatest weight 
with mere laymen on a legal and constitutional question? 
The proclamation has no relation to the chancellor, says 
Antilon. Does not the chancellor continue to receive fees in 
his court according to the rates of the old table ? Is not the 
governor chancellor, and has not the proclamation set up the 
very rates of the old table ? How then can it be said, that the 
proclamation has no relation to the chancellor? Should some 
refractory person refuse to pay the chancellor's fees, What 
methods would be taken to enforce the payment of them ? 
The chancellor, I suppose, would decree his own fees to be 
paid ; would he not therefore be judge in his own cause ? or if 
he should refuse to do the service, unless the fee were paid, at 
the instant of performing it. Would not this be a very eflfectual 
method of compelling payment ? 

"Antilon's strictures in one of his notes on the Citizen's crude 
notions (L) of British polity fall iutirely on another person, 

(L)If the governor may lawfully issue his proclamation for the establish- 
ment of fees, and it should receive a legal binding force from the decree 
of the chancellor, who in this province is governor, or from the determi- 
nation of judges appointed by him, and removable at his pleasure — "Then 
may he behave with all the violence of an oppressor." The will to ordain, 
and the power to enforce, will be lodged in the same person ; I do not 
assert that the governor will act tyranically ; "but the true liberty of 
the subject (as Blackstone justly observes) consists, not so much in the 
gracious behaviour, as in the limited power of the sovereign." 



GOVERNOR EDEN'S ADMmiSTRATION. l4^ 

they are the notious of Montesquieu and of the writer of a 
pamphlet entitled, ' The privileges of the assembly of Jamaica 
vindicated, etc.,' and quoted as such. Notwithstanding the 
appeal from . the court of chancery to a superior jurisdiction, 
the impropriety of having the offices of governor, and chan- 
cellor united in the same person, must be ohvious to eve?!) 
fhiiikiiHj man. ' The proclamation was the act of the governor, 
flowing from his persuasion of its utility ; he was not to be 
directed by the suffrage of the council, he Avas to judge of the 
propriety of their advice, upon the reasons they should offer ; 
they were twelve in number' and no doubt each offered his 
reasons apart ; all this may be very true, Antilon, and you may 
still remain the principal adviser, the sole fahrlcofor of the 
proclamation; Was the proclamation thought of, at one and 
the same instant, by all the twelve'? Who first proposed it? 
If you did not first propose the measure, did you not privately 
instigate the gentleman, who did pro2:)ose it to the board, to 
make the motion ? I know you of old ; you never choose to 
appear openly the author of mischief, you have always fathered 
your ' nii.schieroHs frickfi,' on some one else — to these questions 
I would req^iest your answer, and i-est the truth of the 
accusation on yoiir averment ; but the averments of a 'catikei-ed' 
minister are not more to be relied on, than his promises. I 
have charged, you say, all the members of the council with 
being your implicit dependents ; I deny the charge ; I have 
said, they were imposed on by your artifices ; Is it the first 
time, that sensible men have been outwitted by a knave V You 
are now trying to engage them on your side, and to make them 
parties to your cause. To raise their resentment against the 
Citizen, you endeavour to persuade them, that they have been 
treated as cyphers, dependent tools, idiots, a meer rabble, 
" Nos uumerus, samus et fruges consumere nati," 
We are but cyphers, born to eat, taid xhcp. 

" To draw the governor into yowr quarrel, you assert, that I 
have contradicted him in the grossest maimer ; but, as usual, 
you have failed in your proof, ' In his proroguing speech he 
has declared, that he issued his proclamation solely for the 



144 FIRST CITIZEN .-USID ANTILON. 

benefit of the people, bj nine tenths of whom, be believed it 
was so understood.' That you persuaded him to think the 
proclamation was calculated Holely for the benefit of the people, 
I easily credit, and that he really thought so, I will as readily 
admit : your suhdolons attempts to involve the governor in your 
guilty counsels, and make him a partner in your crimes, dis- 
cover the wisdom of the maxim, ' The King can do no lorong,' 
and the propriety, nay the necessity of its application to the 
supreme magistrate of this province. I shall adopt another 
maxim established by the British parliament, equall}', wise, 
and just, ' The Kiin/.s Sjieeches are (he minister s speeches' The 
distinction, perhaps, will be ridiculed with false wit, and 
treated by ignorance, as a device of St. Omers. The prorogu- 
ing speech, though perhaps not penned, yet prompted by you, 
suggests that nine tenths of the people understood the procla- 
mation was issued for their benefit; how is the sense of the 
people to be known, but from the sentiments of their repre- 
sentatives in assembly? To judge by that criterion, the proc- 
lamation was not understood by nine tenths of the people as 
issued for their benefit. That the application of the above 
maxims should give you uneasiness, I am not surprised ; they 
throw guilt of bad measures on the proper person, on you, and 
you only, the real author of them ; the glory, and the merit 
of good are wholly ascribed to you, by your unprincipled 
creatures ; the spirited reply to the petitioners for a bishop 
was delivered, it is said, in pursuance of your advice : be it so, 
claim merit wherever you can, I will allow it, wherever it is 
due; but cease to impose on your countrymen, think not to 
assume all the merit of good counsels, and of bad to cast the 
blame on others. Hampden has been deservedly celebrated 
for his spirited opposition to an arbitrary, and illegal tax ; a 
similar conduct would deserve some jDraise, and were the 
danger of opposition, and the power of the oppressor as great, 
the merit would be ecj^ual. The violent opposition, which Mr. 
Ogle met with, proceeded, I thought, in great measure from 
the cause assigned in my last paper ; it certainly occasioned 
great discontents. 



GOVEllNOll EDEN's ADMINISTRATION. 145 

" The decree for the pavnieiit of fees ' aceordhui to the very 
settlemeitt of the prochmatioii,' was given, as I conceived, in his 
first administration. A misconception of Antilon's meaning 
led me into this error ; that I woukl wilfully subject myself to 
the imputation of a falsehood so easily detected, will scarcely 
be credited, unless it is believed, that the hardened impudence, 
and hnbittidl iiien(kiciti/ of an Antilon, become proverbial, had 
rendered me insensible of shame, and regardless of character. 
'The Citizen has said, the proclamation ought rather to be 
considered as a direction to the officers, what to demand, and 
to the people what to pay, than a restriction of ofticers ' — 
Antilon afiects to be much piizzled about the meaning of the 
word direction : it is surprising he should, when he holds up 
the proclamation, as the standard, by which the courts of jus- 
tice are to be governed in ascertaining costs, as the only 
remedy against the extortion of officers, by subjecting them 
to the governor's displeasure, and removal from office, if they 
should exceed the established rates, or to a prosecution for 
extortion, should the legality of the proclamation be estab- 
lished in the ordinary judicatories. It is a common observa- 
tion confirmed by general experience, that a claim in the 
colony-governments of an extraordinary power as incidental 
to, or part of the prerogative, is sure to meet with the 
encouragement and sujiport of the ministry in Great-Britian. 
That the proclamation is a point which the minister of Mary- 
land, {our Antilon) wants to establish, is by this time evident 
to the whole prcndnce. Every artifice has been made use of, 
to conceal the dangerous tendency of that measure, to reconcile 
the people to it, and to procure their submission. Opinions of 
eminent counsel in England have been mentioned, the names of 
the gentlemen are now communicated to the publick ; the state, 
on which those opinions were given, though called for, the person, 
who drew it, and advised the opinion to be taken, still remain 
a profound secret. The sacred name of majesty itself, is pros- 
tituted to countenance a measure, not justifiable upon legal and 
constitutional principles, to silence the voice of freedom, and of 
10 



146 FIRST CITIZEN AND ANTILON. 

censure, and to screen a guilty minister, from the just resent- 
ment of an injured, and insulted country. The whole tenor of 
Antilon's conduct makes good the old observation, ' That 
when ministers are pinched in matter of proceeding against 
law, they throAv it upon the King.' (M) Antilon has repre- 
sented the proclamation, as the immediate act of the governor, 
"TAe governor zcas not to he directed, &c." now, to give it a 
still greater sanction, we are told, the governor's conduct in 
this very business, has met with the royal approbation. To 
what purpose was this information thrown out? Was it to 
intimidate, and to prevent all farther writing, and discourse 
about the proclamation ? Unheard of insolence ! The pride, 
and arrogance of this Antilon, have bereft him of his under- 
standing; quos deus vult perdere, primo denieutat. Speaking 
of the proclamation the Citizen has said, ' /// a land of freedom, 
this mintrary exertion of prerogative, iviJJ not, vinst not he endured,.' 
Antilon calls these nangldy ivords, and intimates a repetition 
of them would be dangerous. In a free country, a contrary 
doctrine is insufferable ; the man, who dares maintain it, is an 
enemy to the people, jierhaps, the time may not be very dis- 
tant, when this haughty, self-conceited, this treniendous Antilon 
will be obliged to lower his tone, and will find perchance my 
Lork Coke's saying prove true, ' That the minister, who Avrestles 
with the laws of a free country, will be sure to get his neck 
broke in the struggle.' I have asserted, that the Citizen's first 
paper was wrote without the advice, suggestion, or assistance 
of any person; these words, it seems, are not sufficiently com- 
prehensive; What words of a more extensive import can be 
made use of ? I have denied all knowledge of the paper wrote 
by the Independent Whigs, till it was published in the Mary- 
land, Gazette; to this moment the Independent Whigs are 
unknown to me. The communication to some gentleman in 
private, of a paper wrote against an obnoxious minister, censur- 
ing his publick conduct, though the strictures might meet with 
;their approbation, ought not to render them so culpable, as to 
justify the minister in loading them with the foulest, and most 
virulent abuse ; Does the writer even deserve such treatment ? 
(M) Grey s Debates. 



GOVERNOR EDEN's ADMINISTRATION. 147 

I was too well acquainted with the temper, and character of 
Antilon, not to be j^repared against the bitterest invectives, 
which malice might suggest, and falsehood could propagate; 
such, I was persuaded, a censure of his measures, would draw 
on his censurer. Conscious of my integrity, confiding in the 
goodness of my cause, and desirous of counteracting the 
insiduous designs of a uncked minister, I took up my pen, 
determined to despise the calumnies of a man, which I knew, 
a candid publick would impute to his malevolence. The event 
has confirmed my apprehensions, Antilon has poured out the 
overflowing of his gaul, with such fury against the Citizen, 
that, to use the words of Cicero applied to Anthony. 
" Omnibus est visus vomere suo more nou dicere " 
^' He seems according to custom, rather to spew, than to speak. 
" The extracts from Petyt were to shew, that the commons 
had censured proclamations issued to ' estahlish inatferH rejected 
hy parliament in a session immediateJi/ preceding ; ' Tliat ' Former 
proclamations had been vouched to countenance, and to ivarrard 
the latter.'' 

"The Citizen had no intention to deceive the people; no 
wish, that more might be inferred from his ' little scraps,' than 
what was plainly announced. The proclamations alluded to, 
were contrary to law ; and it is contended, and, I trust, it has 
been proved, that the proclamation fo? settling officers' fees is 
also contrary to law. Had the Citizen designedly suppressed 
the titles of the proclamations recorded in Petyt, would he 
have mentioned the author's name, and referred his readers to 
the very page, from which the extracts were taken ? Would he 
not rather have imitated the conduct of Antilon, who speaking 
in his first paper, of a commission issued by the King to the 
chancellor for settleing fees, neither mentions the book, from 
which the quotation is given, nor the time of the transaction. 
I comprehend fully, Antilon, your threats thrown out against 
certain religionists, to shew the greatness of i/our soul, and your 
utter detestation of malice, I shall give the publick a transla- 
tion of your latin sentence ; the sentiment is truly noble, and 
reflects the highest lustre on its author, or adopter. 

"Eos tamen laedere non exoptemus, qui nos laedere nou exoptant." 



148 FIR8T CITIZEN AND ANTILON. 

" 'We would not wish to hurt those who do not wish to hurt 

us '■ — in other Avords — I cannot wreak ui}' resentment on the 

Citizen, witliout involving all of his religion in one common 

ruin with him ; thej have not ofitended me, it is true, but it is 

better, that ninety -nine just should suffer, than one guilty man 

escape ; a thorough paced politician never sticks at the means 

of accomplishing his ends ; Why should I, who have so just a 

claim to the character? These, Antilon, are the sentiments, 

and threats, couched under your latin phrase, which you even 

w^ere ashamed to avow in plain English ; how justly may I 

retort 

pudet haec opprobia dici, 

'• Et dici potuisse, et non potuisse refelli." 

"The conclusion of a late excellent pamphlet (N) is 
admirably suited to the present subject; I shall, therefore, 
transcribe it, taking the liberty of making a few alterations, 
and insertions. ' If we see a)i arhitranj and tyrannical disposi- 
ion some where, the call for watchfullness is a loud;' That 
there is such a disposiiioi) some where, and where, we all know — 
the proclamation, and the arroijance of its supporter, are convinc- 
ing proofs. 'A tyrannical subject wants but a tyrannically 
disposed master, to be a minister of arbitrary power : if such 
a minister finds not such a master, he will be the tyrant of his 
prince' — or prince's representative — 'as much as of his fellow 
servants, and fellow subjects — I should be sorry to see ' tlie 
(jovernor of this province 'in chains, even if he were content to 
wear them — to see him unfortunately in chains, from which 
perhaps he could Avith difficulty free himself, till the person, 
who imposed them, runs away: which every good -subject 
would, in that case, heartily wish might liappen ; the sooner, 
the better for all." 

First Citizen. 

(N) lutitled, a speech against the suspendiug and dispensing preroga- 
tive. 



GOVERNOR EDEN's ADMINISTRATION. 149 



CHAPTER 1 1. 

'OLD MARYLAND MANNERS." 



1773. The um-uffled current of "Old Maryland Maimers" 
was not disturbed by the storm of political events and contro- 
versal debates in progress within "the antient capital " of 
Maryland. Governor Eden received, from friend and foe 
alike, marked respect in the private circles of Annapolis 
society. Official consideration he commanded. As Governor 
of the Province, on March 28th, 1772, he laid the foundation of 
the present State House, the third on the same site since 
Annapolis became the capital of Maryland in 1694-5. As 
his official mallet struck the stone, a severe clap of thunder 
from a cloudless sky, on a beautifully clear and serene day, 
resounded from the skies above. (Ridgely's Annals, page 
146.) 

Annapolis, at this date, was the most delightful residential 
city of America. Its society was polished and cultivated ; 
among its citizens were the best educated jjeople in the 
colonies ; the drama flourished ; the arts were encouraged ; 
its commerce extended to all seas ; the trades were promoted ; 
its bar was the most profound of the thirteen colonies ; its 
beaiitiful women were elegant and accomplished ; the races 
were run at stated intervals ; foreign, provincial and local 
news was disseminated weeklj^ by the single newspaper of the 
ropvince ; education was advanced ; and the courtly practice, 
in every position of daily life of the charming code of "old 
Maryland manners" made Annapolis an ideal residential city 
and whose ijraise tradition still recounts with affectionate 
regard. 

Nor was this all. In this decade many of its beautiful and 
commodious dwellings, surrounded by spacious grounds, and 



150 FIRST CITIZEN AND ANTILON. 

each resident protected from the petty noises of contiguous 
residents, and defended from molestation by magnificent walls^ 
were erected. Then no endless rumbling of rattling vehicles, 
driven by reckless and uncontrolled Jehues, over vitrified brick 
pavements, disturbed the twilight sleeper or the late riser. The 
mechanic and tradesman could retire at sunset with assurance 
that the quietude of the early hours of evening would not be 
broken by aggressive wagoners over solid stone streets, nor yet 
by the screeching horn and clanging cow-bells of unrestrained 
youth, enjoying the noisy amusement of a straw ride over 
cemented road beds. No rouring trains, no screaming engines, 
no humming dynamos, no encircling cock-loftS counted the 
hours of night with the periodic stroke of a town clock. Then, 
no hawkers of peddling vegetables cried their wares at early 
hours, for municipal law required all venders of vegetable food 
to repair to the market in market hours ; so blue-eyed maidens 
who had danced the night out and morning in, could gain 
refreshment by slumber in a day as peaceful as the night. 
Mr. William Eddis, the English collector of the port, who saw 
Annapolis at this time, wrote in his letters of this delightful 
place : "At present the city has more the appearance of an 
agreeable village, than the metropolis of an opulent province, 
as it contains within its limits a number of small fields, which 
are intended for future erections. But, in a few years, it will 
probably be one of the best built cities in America, as a spirit 
of improvement is predominant, and the situation is allowed 
to be equally healthy and pleasant with any on this side of 
the Atlantic. Many of the principal families have chosen this 
place for their residence, and their are few towns of the same 
size, in any part of the British dominions, that can boast of a 
more polished society." 

The courtesies and attentions that the Governor, the embodi- 
ment of the invasion of public right in the creation of fees 
of ofiice without license from the j^eople, received from those 
who composed the Opposition to his policy, "Antilon" in his 
first letter, outlines, and in recounting these entertainments 
sneers at the objects of them in this language : "but to pursue. 



GOVERNOR EDEN's ADJIINISTRATION. 151 

my traiu ; If I can tell tliem with truth, that I have not only 
been those, who have stared with astonishment at their childish 
and unguarded Court familiarities even in the public streets, 
but that I can recount to them their courtly voyages by water, 
and journeys by land, their carousings, their illuminations, 
their costly and exquisite treats, to gorge the high-seasoned 
appetite of Government ; if I can name the very appointments 
they have laid their very lingers upon, and assure them, that 
I have been well informed of their eager impatience for the 
removal of every impediment, which stood in the way of their 
exaltation, with many other glorious and patriotic particulars." 

Mr. Eddis looked with a more conservative eye, upon the 
consideration the Governor received, and, as late as November 
8th, 1774, when the thiinders of a greater revolution were 
heard in the distance, wrote, when Eden was again in Annap- 
olis, after a visit to England : — " The Governor is returned to 
a land of trouble. He arrived about ten this morning in 
perfect health. He is now commenced an actor on a busy 
theatre ; his part a truly critical one. To stem the popular 
torrent, and to conduct his measures with consistency, will 
require the exertion of all his faculties. The present times 
demand superior talents, and his, I am persuaded, will be 
invariably directed to promote the general good. Hitherto his 
conduct has secured to him a well-merited popularity' ; and his 
return to the province has been expected with an impatience 
which sufficiently evinces the sentiments of the publick in his 
i'avor." 

On March 13, 1775, Mr. Eddis said : "It is with pleasure I 
am able to assert, that a greater degree of moderation appears 
to predominate in this province, than in any other on the 
continent, and I am perfectly assured we are very materially 
indebted for this peculiar advantage to the collected and 
consistent conduct of our Governor, whose views appear solely 
directed to advance the interests of the community ; and to 
preserve, b}- every possible method, the public trancpiility." 

Not only, to the select circle of a private company of his 
intimate friends, did Governor Eden dispense his generous 



152 FIRST CITIZEN AND ANTILON. 

hospitality, but when the little city appeared in all its splendor 
on the anniversary of the proprietary's birth, he " gave a grand 
entertainment on the occasion to a numerous party ; the com- 
pany brought with them every disposition to render each 
other hajipy ; and the festivities concluded with cards, and 
dancing which engaged the attention of their respective votaries 
till an early hour." 

Although the governor led in the festivities of the province 
he was not unmindful of the weightier cares of state. Mr. 
Eddis, who spoke with the unction of a grateful heart and 
sanguine temperament, said of him: "He appears competent 
to the discharge of his important dntj. Not only 'in the 
summer, but during the extreme rigour of an American winter, 
it is his custom to rise early ; till the hour of dinner he devotes 
the whole of his time to provincial concerns ; the meanest 
individual obtains an easy and immediate access to his person ; 
he investigates, with accuracy, the complicated duties of his 
station ; and discovers, upon every occasion, alacrity in the 
dispatch of business ; and a perfect knowledge of the relative 
connexioDS of the country." 

That "men, high-minded men," constitute a State, received 
additional force in that, though Annapolis, in poj^ulation, was 
least of all the cities of America, rating scarcely over a thou- 
sand inhabitants, yet such men as Daniel Dulany, Jr., Charles 
Carroll, of Carrollton, Thomas Johnson, Jr., Samuel Chase, 
William Paca, Eev. Jonathan Boucher, Robert Eden, William 
Steuart, William Eddis, William Hammond, Edmund Jen- 
nings, Jonathan Pinkney and John Rogers vitalized its life 
and made it famous for its culture, wealth and refinement, and 
gained for it the title of the "Athens of America." Its social 
life was created and maintained by such elegant and accom- 
plished women, refined in manners, and lovely in person, as 
Mary Ogle Ridout, Ann Ridgely, Martha Rowe, Miss Hallam, 
a queen of the stage, Annie Ogle, Peggy Steuart, Caroline 
Eden, Catherine Eden, Anna Peale, Mrs. William Paca, Jan6 
Bordley, Eleanor Calvert and a host of unnamed beauties. 



GOYERNOll EUEN's ADMINISTKATKJN. 153 

Therefore its social life, with such women as these as its rep- 
resentatives, Annapolis was "The Paris of America." 

AMiat interested these great and learned people? Dulanj, 
the counsellor of courts ; Chase, the " torch of the coming 
Revolution ; " Paca, the interpreter of constitutions ; Johnson, 
the friend of A^ ashington, and his nominator as Commander- 
in-Chief of the C'ontinental armies ; Carroll, the future diplomat 
of the infant Re^iublic — the races, the theatre, the social 
party, the evening sail on the Severn, and the ball — the last 
enjoyed in a line commodious building yet standing that had 
been built for that purpose, and here Col. George Washington, 
of Virginia, often came to enjoy the dance and the C(unpany of 
the cultured men and beautiful women, who made the society 
of Annapolis so captivating. 

As early as September 20th, 1750, a race was run on the 
race course, "between governor Ogle's Bay Gelding, and Col. 
Plater's Grey Stallion, and won hj the former. For next day 
six horses started, Mr. Waters's horse Parrott, winning, dis- 
tancing several of the running horses. On the same ground 
some years after, Dr. Hamilton's 'horse Figure,' won a purse 
of fifty pistoles — beating two, and distancing three others. 
Figure was a horse of great reputation — it is stated of him 
that, 'he had won many fifties — and in the year 1763 to have 
received premiums at Preston aud Carlisle, in Old England^ 
Avhere no horse would enter against him — he never lost a race.' 
Subsequently, the race. course was moved to a field some short 
distance beyond the city, on which course some of the most 
celebrated horses ever known in America have run. It was on 
this latter course that Mr. Bevan's bay horse ' Oscar,' so 
renowned in the annals of the turf, first ran. Oscar was bred 
on Mr. Ogle's farm near this city, — he won many races, and 
in the fall of 1808, it is well remembered, he beat Mr. Bond's 
' First Consul ' on the Baltimore course, who had challenged 
the continent — running the second heat in 7m. 40s., which 
speed had never been excelled" — (Ridgely's Annals of 
Annapolis.) 



154 FIEST CITIZEN AND ANTILON. 

"Old Ranter" was "Oscar's" great, great, grand sire. 

To these races Gen. Washington used to repair, and in his 
diary naively recounts his gains on the bets on the successful 
pacers. 

The Jockey Club, established in 1750, at Annapolis, con- 
sisted of many principal gentlemen in this, and in the adjacent 
provinces, many of whom in order to encourage the breed of 
the noble animal, imported from England, at a very great 
expense, horses of "high reputation." This club existed for 
many years. " The races at Annapolis were generally attended 
by a great concourse of spectators, many coming from the 
adjoining colonies. Considerable sums were bet on these 
occasions. Subscription purses of a hundred guineas were 
for a long time the highest amount run for, but subsequently 
were greatly increased. The day of the races usually closed 
with balls, or theatrical amusements." 

"Twenty-one years later, 1771, 'The Saint Tamina Society,' 
was inaugurated in Annapolis, and continued its anniversary 
celebrations for many years. The first day of May was set 
apart in memory of ' Saint Tamina,' whose history, like those 
of other venerable saints, is lost in fable and uncertainty. It 
was usual on the morning of this day, for the members of the 
Society to erect in some public situation in the city, 'May-pole,' 
and to decorate it in a most tasteful manner, with wild flowers 
gathered from the adjacent woods, and forming themselves in 
a ring around it, hand in hand, perform the Indian war dance, 
with many other customs which they had seen exhibited by 
the childien of the forest. It was also usual on this day for 
such of the citizens, who choose to enter into the amusement, 
to wear a piece of buck's-tail in their hats, or in some con- 
spicuous part of their dress." 

The firist lottery drawn in this province, was at Annapolis, 
on the 21st September, 1753, for the j)urchase of a "town 
clock, and clearing the dock." The highest prize 100 pistoles — 
tickets half a pistole. The managers were Benjamin Tasker, 



GOVERNOR EDEN's ADMINISTRATION. 155 

Jr., George Steuart, Walter Dulany, and ten other gentlemen 
of Annapolis. 

The witch haunted Annapolis in those days. Tradition tells 
us, that when the}' bnilt the "Brig, Lovely Nancy" — at the 
launch of which the following incident occured : " She was on 
the stock, and the day appointed to place her on her destined 
element, a large concourse of people assembled to witness the 
launch, among whom was an old white woman named Sarah 
McDaniel, who professed fortune-telling, and was called 'a 
witch.' She was heard to remark — ' The Lovely Nancy will 
not see water today.' The brig moved finely at first, and when 
expectation was at its height to see her glide into the water, 
she suddenly stopped, and could not be again moved on that 
day. This occurrence created much excitement amongst the 
spectators ; and Captain Slade and the sailors were so fully 
persuaded that she had been ' bewitched,' that they resolved to 
duck the old woman. In the meantime she had disappeared 
from the crowd ; they kept up the search for two or three days, 
during which time she la}^ concealed in a house." 

" The Lovely Nancy, " did afterwards leave the stock, and 
is said to have made several prosperous voyages. 

Underneath the bubbling current of their trifling entertain- 
ments ran the deep waters of political and economic discus- 
sion. Beneath the roar of the great torrent of debate over tlie 
proclamation and fee-bill that excited and entertained the 
citizens of Annapolis, was heard the sound of arms over the 
rates to be paid the established clergy. When the fee-bill 
expired in 1770, provision for the clergy failed, and the 
question arose under what statute they would receive their 
tithes. 

Many contended that the statute of 1702 revived. Tliis 
gave the clergy forty pounds of tobacco per poll instead of 
thirty, that they now received. It was Mr. Samuel Chase's 
opinion, given to the Rev. Mr. Barcla}^ first on Ajjril 3rd, and 
next on May 29th 1772, that the clergy had the right to sue 
on the sheriff's bond for the tobacco, and the sherift' himself 



156 FIIJST CITIZEN AND ANTILON. 

for money had and received. The sheriff could levy on the delin- 
quent's property for these amounts as for other unpaid taxes. 
No discretion was left to the county courts to make the assess- 
ment. The sheriff had to collect. The question itself was at best 
difficult. The issue became more involved when the validity of 
the act of 1702 was attacked. It was claimed that the act was 
invalid because King William III, in whose name the legisla- 
ture had been summoned, had died before the assembly had 
met and passed the law. Answer was made to this that, then, 
if the act of 1702 was not law, the act of 1700, repealed by 
the statute of 1702, was still in force, and that, also, made 
the rates of the clergy forty pounds of tobacco per poll. The 
replication to this was that the act of 1704 repealed all prior 
laws with few exceptiors, and that had taken force of the law 
of 1700. Rejoinder was made by the friends of the clergy 
that the act of 1704 confirmed the act of 1702, and that four 
succeeding statutes recognized the latter act as a binding law. 
Others claimed for the clergy that the act of 1700 had pre- 
served the rights of the clergy. 

It can be well imagined what a ripple of excitement was 
created in the midst of the already animated city when the 
two earlier opinions of Chase, now a leading and violent 
partisan of the people's party against the clergy, were pub- 
lished in the Gazette. To defend Mr. Chase from this flank 
attack on his new position, it was claimed that one of the 
opinions, at least, was a forgery. Other friends of Chase's held 
that the opinions were carefully guarded, merely stating what 
the law would be if the statute were valid. The foes of Mr. 
Chase accepted no excuses, but claimed that his former 
opinion on the statute "gives undoubted testimony" as to the 
vitality of the law and was a jiroof of the inconsistency of 
Chase in his bitter addresses in the Lower House of Assembly 
against the act. 

Occupying a large portion of the Gazette was the corres- 
pondence of the advocates of the clergy and those who stood 
in opposition. Samuel Chase, Thomas Johnson, and William 
Paca maintained the discussion in opposition to the fort;;^' 



Ct0^t:rnoi{ eden's administration. 157 

pounds of tobacco per poll for the clergy. The validity of 
the act of 1702 was sustained in a vigorous and powerful argii- 
ments by the Eev. Jonathan Boucher, rector of St. Anne's 
Church, Annapolis. Himself no lawyer and with three of the 
brightest intellects of the law against him, Mr. Boucher sup- 
ported his position with rare ability and extraordinary force. 
Mr. Paca advanced strong arguments against the constitu- 
tionality of the act of 1702. He quoted precedents showing 
that all similar statutes, passed after the death of the sovereign, 
in whose name the legislature had been called, had to be 
expressly confirmed by subsecpient acts. One occurred in 
Maryland after the death of Charles Lord Baltimore. He 
held, therefore, that the act of 1702 was void when passed, 
and had never been projDerly confirmed. Many writers took 
opposing sides ; but none equalled in length, interest or ability 
the correspondence that Avas maintained between Chase, John- 
son and Paca on the one side, and the Eev. Mr. Boucher on 
the other. The keen personal allusions and direct thrusts 
of the rector at his opponents gave additional flavor to the 
cogency and fierceness of his arguments. 



158 FIRST^CITIZEN AND ANTILON. 



CHAPTER 12. 

THE FOURTH LETTER OF ANTILON. 



1773. Mr. Dulany now wrote liis fourth and last letter in 
reply to First Citizen's tliird letter. The communication of 
Mr. Dulany appeared in the Gazette of June 3, 1773. The 
letter in full was : 

^'^ DuceriK ut neriiix alieiiis intihile liynuui.'''' 

Hor. 

Thou thing of wood, and wires by others play'd. 

Francis. 

"The Citizen in a former paper expressed his expec- 
tation, that 'lawyers would not be wanting to undertake a 
refutation of Antilon's legal reasoning, in favour of the procla- 
mation,' and signified it to be his design to examine the 
measure, on the more general principles of the constitution. 
His expectation I am induced to believe from various circum- 
stances, from occurrences extrinsick to the last performance 
jjublished with his signature, and from the many peculiar 
marks with which the work abounds, has not been disap- 
pointed. The artifice of this shifting management obliges me 
to enter into a minute detail, and in this to repeat some pas- 
sages of my former letters, for the purpose of giving a plain 
view of the subject, which my adversaries have endeavoured to 
perplex by their cavils, and obscure b}^ their declamations; 
for I am persuaded that the better the measure, which has 
been branded with the character of an arbitrary tax, is under- 
stood, the more will its legality, and expediency appear. 

" When the late inspection law expired, as there remained 
no regulation of the fees of ofiicers, so would they have had 
it in their power to commit excessive exactions, if there existed 
no competent j^uthority to restrain their demands, or if such 



GOVERNOR EDEN's ADMINISTRATION. 150 

authority did exist, and was inactive. If such authbritj 
existed before the temporary act was made, it of course 
revived on the expiration of this act, and no declaration, or 
resolve of the lower house could prevent the exercise of it ; 
because if the authority was competent, its competency was 
derived from the law, which can't be abrogated, altered, or in 
any manner controuled, but by an act of the whole legislature. 
The question relates to old or constitutioual officers, who are 
supported not by salaries, but by casual fees, whose incomes 
are not fixed by stipend, but turn out to be more or less 
according to the services they perform. As the offices are 
old and comtitational, and thus supported by incidental fees, so 
is the right, to receive such fees, old and consiiiutloiml. There 
have been, as will appear hereafter, different regulations of 
these fees at different periods, none of which remained, when 
the late inspection law expired. The officers, being entitled 
to these rewards for their support, they could not be guilty of 
"vxtoriioii merely for receiving fees — when they perform services. 
They could not commit extortion, but by taking larger fees 
than they ought, and consequently, without some positive rule, 
or standard, it would not be extortion, if an officer should 
exact o}iy fees for his services. In this situation, when there 
was no regulation of fees, no restriction of the demands of offi- 
cers, the proclamation issued, with the professed design of 
preventing the excessive exactions of ofiicers, and for this pur- 
pose ordered, that no officer should receive greater fees, than 
the rates settled by the then last regiilation, under pain of the 
Governor's displeasure, which rates were the most moderate of 
any, that had before been established, and in consequence of 
the falling of the inspection law, less beneficial to the officers. 
Such in substance is the proclamation. It has, however, been 
objected, that it did not proceed from the profeiised design of 
preventing extortion; but the real motive was the benefit of 
the officers, and the time, when it issued, is urged as a proof, 

* Extortion is committed, wlieu an officer, by colour of his office takes 
money, or otlier valualile tiling, which is not due, or more than is due, or 
before it is due. 



Ij^O FIRST CITIZEN AND ANTILON. 

that this was the motive. The rectitude, or impropriety of 
the measure is not to be determined bv professions, or impu- 
tations, but by its effects. Officers without settled rates of 
fees, would be under no legal restriction. The present regula- 
tion contains no enforcement of payment from the people, the 
officer being left to his legal remedy. When the inspection act 
was in force, his remedy was by execution. This effect of the 
new regulation can't be denied, viz. that the officer, being 
removeable, is restrained, by the threats of the person, who 
has authority to remove him, from receiving beyond the rates 
prescribed, and without this regulation, would have it in his 
power to demand, and receive fees, not only to the extent of 
the rates, but beyond it. The little suggestion, introduced by 
a puerile dialogue, that a party might have the service done, 
and refuse payment for it, if he thought the demand not 
reasonable, has been answered, by shewing that an officer would 
not have been bound to perform a service, without payment 
at the time of performing it. Whence then the benefit to the 
officer by the restriction resulting from the proclamation '? and 
if a benefit to the officers can't be shewn, and the restriction 
can't be denied, how is the professed design of the proclama- 
tion, productive of the very effects explained by it, refuted by 
imputing to it a different motive, with which its effects do not 
correspond ? 

" As to the time, when the proclamation issued, the new 
regulation was then if ever proper, because the former then 
• ceased, and the two houses having disagreed on the subject 
there remained no regulation at all, so that as to this impu- 
tation, 

" Cum ventum ad verum est, sensus moresque repugnant, 
Atque ipsa utilitas, justi prope mater et aequi."" 

" But the grand objection to the new regulation of fees is, 
that it imposes a tax upon the px^ople, and consequentlj- is com- 

*" When we appeal to truth's impartial test, 
Sense, custom, social good, from whence arise 
All forms of right, and wrong, the fact denies." 

Fkancis. 



gm:)\^enok eden's administration. 161 

petent only to the legislature. Wlietlier this idea be proper 
or not, I shall consider. If when fees are due, a regulation, 
allowing the ofticer to receive them at a certain rate, be a tux, 
there can l)e no legal regulation of fees, in (uiji 'nisUiucf, except 
by the legislature ; but if it can be proved, that there may be 
legal regulations of fees wifhoni a legislative act, then the idea 
of tax is improper. I have already observed, that the lords, 
and commons, and the upper, and lower houses of assembly, 
separateh), have allowed fees to be taken by their necessorj/ 
officers, and since taxes cant be imposed but with the concur- 
rence of all the branches of the legislature, I have concluded, 
that tlwi^e fees are not taxes ; but the proposition that taxes 
can't be laid,^ but by the legislative authority, is denied by my 
adversaries, who, in order to evade the direct consequences of 
the instances put, add this restriction, 'saving such cases, as 
are n-ar ranted by long immemorial, and uninterrupted usage.' 
This exception, ^they have not attempted to prove, and there- 
fore have not advanced any reasoning for particular discussion ; 
l)ut their principle may be ascertained, and it will be incum- 
bent upon them either to give up their exception, or to main- 
tain this position, that there is an autliority to tax, icarranted 
by long, immemorial, and uninterrupted usage, disthict from 
the legislative ; for the exception being applied to qualify the 
general, or major proposition that 'taxes can't l;)e laid, 1)ut by 
the legislative authority' necessarily implies, that there may 
he taxes lairfalhi established by mnie other, than the legislative 
authority, and the exception being expressed to result from 
' such cases, as are warranted hy long, immemorial, and unin- 
terrupted usage,' it remains to be proved, that there are such 
warranted cases of tax, or the exception stands on a mere 
supposition to evade the force of my conclusion, without any 
proof to support it. Noav I call upon my adversaries to prove, 
on the principles of our constitution, that there are cases of 
tax, wanrnded by usage, hiown to have received n<> legislative 
sanction, but to have been established by the lords or com- 
mons, the upper or lower house of assembly, separately, or l)y 
11 



162 FIRST CITIZEN AND ANTILON. 

the judges. If thej fail in their proof, mj argument, that ' no 
tax can be imposed except by the legislature ; but fees have 
been lawfully settled by persons not vested with a legislative 
authority, consequently the settlement of fees is not the 
imposition of a tax,' remains in full force. If the original 
■settlement, of any fees was a tax, it continues a taXj if itjivas 
not a tax, it can't become so from the acts of officers, and 
parties receiving, and paying the fees. The origin of it being 
•ascertained, and not left to pre.wmption, if the settlement of 
fees was originally a tax, and therefore unlawful in the com- 
mencement, the usage, or, in other words, the repeated acts of 
paying, and receiving, can't make it lawful : for it is an estab- 
lished maxim of law, if, on enquiry into the legality of custom, 
or usage, it appears to have been derived from an illegal source, 
that it ought to be abolished — if originally invalid, length of 
time will not give it efiicacy. 

"It is, indeed, strange that they, who object to the argument 
from precedents, should rely altogether upon them in support 
of a doctrine so extraordinary, as that the legality of even taxes, 
not laid by the legislature, may be maintained by the prece- 
dents of their having been paid, and received ! For what con- 
stitutes usage ; but the frequent repetition of the same acts, or 
examples for a long time ? Wherefore, I presume, the settle- 
ment of the fees of old conniitiitional offices, to irhich the right of 
fees ivas annexed lohen the offices jvere created is not a tax, and 
that the lawful allowance of fees to their necessary officers by 
the lords A'c. Mdio are not vested with a legislative authority, 
is a proof of my position. Saying that these allowances are 
founded on the laAv of parliament, which is part of the general 
law, amounts to no more than saying, they are lawful ; but the 
proof is wanting, that either branch of the legislature, alone, 
Clin impose taxes on the subject by the law of parliament. 

" The judges are not governed by the law of parliament ; they 
have no authority to tax the subject ; biit their allowance of 
fees to their necessary officers is lawful. It appears by the 
21st Hen. 7th, that an officer was entitled to reseive a fee of a 
person acquitted of a felony on this principle, that it was 



^ GOVERNOR EDEN's ADMINISTRATION. 163 

assigned him by the order and discretion, of the court ; and with 
reason, and good conscience, for his trouble, charge, and 
attendance on the court with prisoners. This is a pointed 
authority, and I believe, has never been impeached. In the 
case of Shurley and Packer, Hill 13 Jac. Coke observed, that 
by the statute of Westm. 1st. no sheriff could take money for 
serving process, and that the receipt of money for such service 
would be extortion ; but that the judges may allow him fees, and 
with such allowance he may receive them, and he cited the 
21st Hen. 7tli. 

" Hawk. 1 book, cap. 68, speaking of the statute of Westm. 
1st, observes that ' it can't be intended to be the meaning of 
it to restrain the courts of justice, in whose integrity the law 
always reposes the highest confidence, /ro//^ aUoiving reasonable 
fees for the labour, and attendance of their officers ; for the 
chief danger of oppression is from officers being at liberty to 
set their own rates, and make their own demands ; but there 
can't be so much fear of these abuses while they are restrained to 
known, and stated fees, settled by the disci^etion of the courts, which 
will not suffer them to be exceeded without the highest resent- 
ment.' Do my adversaries deny this authoritj', have they any 
distinction to evade the force of it, or do they admit it? If 
it is admitted, it directly applies to, and supports, my posi- 
tion, that the settlement of fees, and restraining officers to 
known, and stated rates, by the allowance, and order of the 
judges, is not taxing the subject. To prove that fees can be 
settled only by act of parliament, or antient usage, they have 
quoted a passage from Bac. abrid. 2 Vol. 463, but in the next 
page of the same book, this passage, which they have omitted, 
occurs, ' such fees as have bee"n alloioed by the courts of justice 
to their ojjicers as a recompence for their labor and. attoidarice 
are established fees,' a position which corresponds with 
Hawkin's doctrine. Coke's exposition of the statute de 
tallagio non concedendo is again cited. 'All new offices erected 
with new fees, or old offices with new, fees, are a tallage (or 
tax) put upon the subject, and therefore cant be done without 
common assent by act of parliament.' Whenever therefore, a fee 



164 FIRST CITIZEN AND ANTILON. 

is a tax, it can't be established irlthouf an act of parliament 
This was the result of mj major, or general proposition, 
which they have endeavoured to restrain by the exception, 
such cases as are warranted ' by long, immemorial, uninter- 
rupted usage,' an exception directly repugnant to Coke's 
opinion. When fees are taxes, only the legislature can law- 
fully grant them ; but that fees are not taxes, in the instances 
I have put of allowances made by the lords etc. and the 
judges, the legality of these allowances is a plain proof. 
What construction then shall the passage cited from Coke 
receive, that it may be reconciled with the other authorities? 
'new offices erected with new fees,' my adversaries admit are 
out of the question, that fees may be settled or ascertained at 
a time subsequent to the institution of the offices, the cases, I 
have cited, prove, and if the construction of the passage from 
Coke be carried so far as to include these settlements, or rates, 
he is contradicted by those cases, and appears to be incon- 
sistent with himself, not only from the case of Shurley and 
Packer, but the doctrine he has laid down in his 1st inst. 
which I shall presently consider. This being the state of the 
matter, there is a necessit}' for putting such a construction 
upon his wordsj as may reconcile his ojnnion Avith the other 
authorities, or it will be overruled by them. Fees may be diie, 
without a precise settlement of the rate, and the right to 
receive them may be coeval with the institution, or lirst creation 
of the offices, as in the case of our old, or constitutional offices ; 
when such fees are settled, i\\e.j are not properly new fees, 
and therefore a regulation, restraining the officer from taking 
beyond a stated sum for each service, when he was before 
entitled to a fee for such service, is not granting, or annexing 
a new fee to an old office, but when the officer is not entitled to 
receive a reward from, the party in the execution of an old 
office, or is entitled to a certain sum from him, the granting of 
a fee, when nothing was before due, or augmenting the sum 
the officer was before entitled to, creates a new fee, according 
if) Coke's exposition. When a man, in consideration of receiv- 
ing an adecpiate recompence for the service, performs work, 



GOVERNOR EDEN's ADMINISTRATION. 165 

and labor for another at bis request, without a special contract 
fixing the sum to be paid, he, for whom the service is done, 
becomes indebted. If the parties to the contract afterwards 
ascertain the sum due for the senice, this settlement does not 
create a rieu- debt, but 'fixes, or regulates the quantum or rate 
paj'able on the original contract. In this sense I understand 
Lord Coke, and admit that, when fees are settled, they ought 
not to be augmented — when services ought to be peformed 
without a fee, a fee ought not to be granted ; but oppose any 
construction contrary to the authorities I have cited to estab- 
lish this point fhctt when officers are entitled to fees, not precisely 
settled as to the quant nrn or rate, they may be fixed, or ascer- 
tained by the authority of the judges incident to their functions, 
or offices, and that it is not a just objection to their exercise of 
this authority that ' the settlement of fees is the imposition of 
taxes on the subject.' ^ 

"Co. Litt. 368 is also quoted, to this effect: 'it is provided 
by the statute of Westm. 1st? That no sherifi' or other minis- 
ter of the King, shall take any reward for doing of his office, 
hut only that ivhich the King allowed hint, on pain that he shall 
render double to the party, and be j)unished at the King's 
pleasure,' and this was the antient common law, and was 
punishable by fine, and imprisonment; but the statute added 
the aforesaid penalty. ' Some latter statutes having permitted 
them to take in some cases, by colour thereof, the King's 
officers, as sheriffs, coroners, escheators, feodaries, jailers, and 
the like, do offend in most cases, and seeing this act yet standeth 
in force, theij can't take any thing: but where, and so far as 
latter statutes have allowed to them. Yet such reasonable fees 
as have been allowed by the courts of justice of antient time 
to inferior ministers, and attendants of courts for their labour, 
and attendance, if they be asked, and taken are no extortion.' 

" In his exposition of the statute de tallagio non concedendo, 
Coke lays down the position, that where the grant of fees 
woidd amount to a tax, ' it can't be done without act of parlia- 
ment.' In the passage just cited from the 1st inst. it appears 
that 'such reasonable fees, as have been allowed by the courts 



166 FIRST CITIZEN AND ANTILON. 

of justice of antient time, <fec.,' may be taken, and therefore 
these fees fall not under the predicament of tax which can be 
laid only by act of parliament. 

"I must first observe, that this statute of Westm. relates 
only to officers supported by salaries, tind not by fees from 
suitors. ' They are to take only thai, which the Kbiy alloived 
them. ' The constitutional officers in Maryland, derive no 
support from salaries, or any other allowance, than the fees 
they receive from those, for whom they perform services ; the 
right to demand, and receive such fees is coeval with the insti- 
tution of their offices, and therefore they are not within the 
purview of this statute, which describes, and relates to, officers 
prohibited from taking ' any reward for doing of their office ; 
but only that which the King aUoioeth;' but yet notwithstanding 
the absolute terms of this statute. Lord Coke observes, that 
'such reasonable fees, as have been allowed by the courts &c.' 
may be taken. The statute is so far from permitting the 
taking even of these fees, that the words of it are in the nega- 
tive, ' not any reward shall be taken ' beyond the crown's 
allowance, and yet, by construction, fees allowed of antient 
time by the judges may be taken with impunity. I have 
already remarked, and shewn, that this statute does not extend 
to constitutional officers in Maryland, whose right to receive 
fees is coeval with the institution of their offices, and who 
have no other support, than what they derive from these fees. 
The objectors having, howe\:er, observed, that it does not 
appear, ' the judges have ever imposed neiv fees by their sole 
authority, ' I will pursue the subject a little farther, though I 
have already given an anwer to their case, and inferences from 
it. The passage cited from Coke shews that fees allowed by 
the courts may be lawfully received even by officers described 
in the statute of Westm. 1st — upon the allowance of these 
fees surely they were new, the allowance was by the judges, 
and therefore without doubt, when made new fees were allowed 
by the judges by their sole authority. If the fees, thus 
allowed, were originally, when they were new, taxes, they have 
not ceased to be taxes, in consequence of the frequent repeti- 



GOVERNOR EDEN'8 ADMINISTRATION. 167 

tion of the acts of payment, aiul receipt, and of their having 
obtained the denomination, ' antient fees. ' Serjeant Hawkins 
having taken notice that ' at the common hiw affirmed by 
Westm. 1st, it was extortion for any minister of the King, 
whose office did any way concern the administration, or execu- 
tion of justice, or tlie common good of the siibject to take any 
reward for dicing his service, except what he received from 
the King, ' makes this remark' ' surely this was a most excel- 
lent institution, highly tending to promote the honor of the 
King, and the ease of the people, and hath always been 
thought to conduce so much to the public good, that all pre- 
scripfious whatsoever, which have been contrary to it, have 
been holden to be void, and upon this ground it hath been 
resolved, that the prescription b}- virtue whereof the clerk of 
the market claimed certain fees for the view, and examination 
of all weights and measures, was merely void. ' The allow- 
ance therefore of the judges was lawful, when made, and when 
the fees were neai or it could not become so by length of time, 
since )io prescription contrary to the common law, affirmed by 
the statute of Westm. 1st is good. Hence it appears that the 
judges have an authority incident to their ofHce to settle the 
rates of fees. That the settling, or fixing the rates of fees has 
been deemed to be a proper preventive of excessive exaction 
will, moreover appear from the following proceedings. Among 
the rules, and orders of the court of chancery published in the 
year 1789, the following order occurs — 'it is his Majesty's 
pleasure, that the judges of all his Majesty's courts at West- 
minister do impanel juries of the officers, and clerks of the 
same court, to enquire what fees have been usually taken by 
the several officers for the space of thirty years last past, upon 
certificate whereof his Majesty will take such course for 
settling fees, as to his wisdom shall seem meet, and the lord 
keeper is to signify this his Majesty's pleasure to the judges 
of the other courts, that they may perform the same this 
term!' Among the rules, and order of (/. B. published in 
1708 is one, to the following efiect, 'a jury of able, and cred- 
ible officers, clerks, and attornies once in three years shall be 



168 



FIRST CITIZEN AND ANTILON. 



impanelled, and sworn to inquire of new, exacted fees, and of 
those, who have taken them under Avhatever j^retence, and to 
prepare, and present a table of the due, and just fees, that the 
same may be fixed, and continued in every office. ' 

"In the 3^ear 1743, an order was made in chancery by Lord 
Hardwicke, reciting that 'the King iqion the address of the 
eoiniiious had issued his commission for making a diligent, and 
particular survey, and view of all officers of the said court, and 
inquiring what fees, rewards and wages every of these officers 
might and ought lawfully to have in respect of their offices, 
and what had of late time been unjustly encroached, and 
imposed upon the subject, that the commissioners should 
propose in writing means and remedies for reforming abuses, 
and certify their proceedings to his Majesty in chancery, 
reciting also the execution of this commission, and the certifi- 
cate of it, and that his lordship, being desirous that the 
suitors should enjoy the benefits proposed in the certificate, 
had thought proper the same should be established by 
the authority of the court, and observed, till some further 
or other provision should be lawfully made touching the 
premises, therefore his lordship by the authoritij of this 
honorable court, and with the advice and assistance of the 
master of the rolls, doth hereby order, and direct, that the 
masters, or their clerks do not demand, or take any greater 
fees, or rewards for business in their respective offices, than 
the fees or rewards following viz.' Then are added tables of 
the fees of the respective officers. Among the fees settled by 
this order, with the advice of the master of the rolls, are the 
fees claimed by the latter, and the officers, not observing this 
order, are threatened Avitli the same punishment, as for a con- 
tempt of the court. A provision is made for the payment of 
the fees of chancery by this rule, ' if any cause be set down 
for hearing, in which the fees have not been paid, this may 
be alleged by the officers to stop the hearing of the cause,' 
and the hearings of causes have been accordingly stopped by 
the court, on the clerk's insisting to have his fees paid, or 
secured. 2d P. W. 461. 2 Vez. 112. Roll, chief justice, 



GOVERNOR EDEN's ADMINISTRATION. 169 

declared that 'if a client, when his business is dispatched, 
refuse to pay the officer in court the fees due to him for doing 
the business, an attachment upon motion will be granted 
against him for commitment, till he pay the fees due ; for the 
not paying fees is a contempt of the court, and the court is 
bound to protect their officers in their rights.' P. E. 598. 

" How has the greater part of fees been settled, or ascer- 
tained, but by the allowance of the courts on the principle 
explained by Hawkins, in pursuance of the authority incident 
to the offices of chancellors, and judges ? Every instance of a 
fee so settled, contradicts the notion, that the settlement of the 
rates of fees is a tax, because it is not competent to any other 
than the legislative authority to tax. This power of the judges 
is founded on utility, justi prope mater A: fequi, for, with- 
out the restriction of fixed rates, officers might commit exces- 
sive exactions to the grievous oppression of the people. If it 
should be asked, how does it appear, that the far greater part 
of fees hath been settled b}' the allowance of the courts and 
not by statutes? I answer, because the officers entitled to 
fixed rates can derive this right only from the determination 
of the courts, or the provision of statutes, and it does not 
appear by the statutes, to which we may have recourse, and 
collect the instances, wherein fees are settled by them, that 
the legislative provisions extend to any considerable propor- 
tion of the fees of officers. 

"The proceedings of the commons in 1752, as I observed in 
my former letter, shew the opinion of the committee to have 
been that tables of fees fixed and established by the authority 
of the judges would be the i)roper means to prevent excessive 
exactions, and the committee could not but know that the 
greater part of the fees was claimed by the officers, independent 
of statutes, and this claim would be more firmly established by 
the proposed tables. If these fees were taxes, and therefore 
unlawful, it is not to he imagined that a measure would have 
been recommended by the commons, tending in any degree to 
countenance an infringement of the privilege, they are so 
peculiarly tenacious of, that of their being the first spring of 



170 FIRST CITIZEN AND ANTILON. 

all taxes. This remark applies to the order of Lord Hard- 
wicke in 1743, in consequence of the address of the commons, 
and the commission from the king. When fees are due to 
officers, and the rates not fi^xed, the judges, in very many 
instances, are obliged by statute law to settle or assess, the 
fees. For at the common law, costs were not given to plain- 
tiffs, though the justices in eire, in assessing damages, usually 
assessed a sum sufficient to satisfy the costs expended ; but 
the statute of Gloucester is the first principal act, which gives 
costs, and though only the costs of the writ are taken notice of 
in this statute, yet the provision hath been extended by con- 
struction to the other charges of suit. Where costs are due, 
the judges are obliged to award them. The sum, or amount of 
them must be ascertained — in this amount are the fees of the 
officers, which must therefore be ascertained, if not otherwise 
fixed, by the allowance of the judges. When fees are due, and 
the rates not fixed, the jiidges are not only authorized, but 
obliged by statute to settle the rates, because they are obliged 
to award costs, a duty they can't perform without ascertain- 
ing the fees. I have already observed, that justice can't be 
administered without the exercise of this authority, the statute 
law can't be carried into execution without it, and have still 
the presumption to conclude, that what is essential to the 
administration of justice, to the execution of the huv, to the 
general protection of the people, is not like the ship-money, 
an arbitrary, despotic imposition derogatory from the funda- 
mental principles of a free constitution, though nn orator on a 
table, magno blaterans clamore (sputtering with great vocifera- 
tion) should bellow out his horrible indignation. 

"I shall now proceed to examine such of the objections to 
the present regulation of fees, as are not already directly 
obviated, without paying much attention to the flowers, and 
ornaments of declamation, with which they are most admirably 
bedecked. 

"Objection. The act of assembly, which regulated the fees 
of officers was temporary, principally, on this consideration, 
that there might be frequent opportunities of correcting and 



GOVERNOR EDEN's ADMINISTRATION. 171 

altering the tables of fees ; but if fees may be settled by any 
other, than the legislative autliority, upon the expiration of 
the temporary act, then the regulation of the fees by the 
temporary act may become perpetual, against the intention of 
the delegates, who concurred in enacting the temporary law. 

"Answer. Though such was the motive, as the objection 
assigns for making the act temporary, yet when the act expired, 
the authority, which existed before the enaction of the tem- 
porary law, of course revived, so that the question is, whether 
there was an anterior authority to settle the rates of the fees 
due to the officers? which I have already considered. The 
rates settled by the temporary act might justly be adopted 
in the new regulation, and very properly, because the most 
moderate of any, that had ever been established ; but the whole 
regulation could not be continued because it gave the remedy 
of executif)n to the officers. At any time before, or after the 
expiration of the temporary act, the tallies of fees, without 
doubt, might have been corrected, or altered, b}' the whole 
legislature, not hj the delegates alone, but the operation of the 
temporary act did not, in any degree, extend beyond its limited 
duration. Whilst in being, it controuled all other authority ; 
when it ceased, all its controul of any pre-existent authority 
ceased. 

" Objectit)n. If the judges have authority to settle the rates 
of fees, when fees are due, but their rates not tixed, there was 
no occasion for the parliament to ascertain fees, in a variety 
of instances. If the judges can settle fees, as well as the 
parliament, there would 'seeni to be two distinct powers capable 
of the same thing, and, ' if co-equal,' they may clash. If the 
legislative branches should disagree, and in consequence of 
such disagreement, there should not be a regulation of fees 
by an act, the interposition of parliament may be rendered 
nugatory, should the want of a legislative regulation be sup- 
plied by the authority of the judges. 

"Answer. Parliament may have peculiar motives for settling 
fees in various instances — when laws are enacted, requiring 



172 FIllST CITIZEN AND ANTILON. 

the services of officers, the merit of such services are very 
properly considered, and the reward ascertained. Peculiar 
penalties, which judges can't inflict on the general principles of 
law, may be deemed expedient on many occasions. Judges 
may establish rules of practice in their courts ; but the prac- 
tice of courts has been regulated by parliament in various 
instances, and without doubt, may be in all. The notion of 
parliament, and the judges having a co-ordinate power, which 
might clash in the exercise of it, is too whimsical to require a 
serious answer. Parliament consists of three branches, and 
they must all concur to establish laws, and how the judges, 
by supplying the want of a legislative regulation when there 
is none, can render the interposition of parliament nugatory, 
is beyond my conception. The interposition of parliament, 
declaring the legislative will, is a law, without such a declara- 
tion constituting law, there can be no interposition of parlia- 
ment. The power of the judges will prevail against the decla- 
ration, or resolve of one branch of the legislature, because 
this power is controulable only by a law, and such declaration, 
or resolve is not a law, nor has it any degree of constitutional 
efficacy either in prohibiting the exercise of any prior legal 
authority, or in conferring a right to exercise an authority, not 
before legal. 

" Objection. Should the leading members of one ])ranch of 
the legislature be deeply interested in the regulation of fees, 
that ))ranch would probably endeavor to obtain an exorbitant 
provision, which another branch would dissent to. The two 
branches disagree, and no law is made. A necessity for the 
judges to act is. insisted upon, and they may, ' i^erhapfi,' estab- 
lish the very fees, perpetually, which one branch condemned 
as excessive^ — judges who hold their seats during pleasure. 

"Answer. I might in my turn, suppose leading members of 
turbulent dispositions requiring what they expect will be 
opposed, with the view of having a subject for clamour ; who 
would be of very little importance in times of tranquillity, 
and order, whose ambition it is— 'to ride on the whirlwind, 
and direct the storm.' 



GOVERNOR EDEN's ADMINISTRATION. 173 

" The fact, I believe, was, that both branches agreed so far, 
that if a reguhitiou had been established bv an act to the 
extent of that agreement, the fees settled bv the late insi:)ec- 
tion law Avonld have been reduced on an average, one-third — 
I mean by the alternative extended to the planters to pay in 
money, or tobacco, and that a regulation of fees, according to 
the old tables, adopting this alternative, would have given 
general satisfaction. One branch held tliis to be a sufficent 
diminution of fees, the other contended for a greater. The 
power of tiie judges, not having been restrained by the 
superior authority of the legislature, remained in full force. 
It will not, I trust, be directly affirmed, that the proposition 
of the one branch, dissented to by the other, has the force of a 
law, though some consequences, drawn from the resolves of 
one branch opposite to the sentiments of the other, seem to 
imply an opinion, that they have some degree of obligatory 
sanction, which the}' can't have, if they are not laAvs : for 
there is no medium between an obligatory declaration, or 
resolve of one branch, constituting any rule of conduct, when 
the subject is such, that the concurrence of all the branches of 
the legislature is necessary to establish a comjjleat act, and a 
full compulsory law. The judges, not having been restrained 
by the proceedings of the two houses, might, for the reasons 
explained, adopt the regulation approved of by the one, and 
condemned by the other. The action, and re-action being 
equal, no force remained. Their regulation having been estab- 
lished, it may be perpetual ; Init this depends ujDon the legis- 
lature : for it may be abolished b}' a law. It is true, that the 
judges hold their seats during pleasure, but whilst they thus 
hold them, they have the legal powers annexed to their 
stations, and their situation is such, that they rather confer a 
favour upon, than receive any from, government. It is even 
difficult to prevent their resignation, so little is their dread of 
removal. AYe must consider legal consequences, on the })rin- 
ciples of the constitiition ;is it is; that it may be very mucli 
improved, I have no doubt, by altering the condition of our 
judges, by making them independent, and allotting them a 



174 PIKST CITIZEN AND ANTlLON. 

liberal income, instead of a scanty allowance hardly sufficient 
to defray their daily expences. Such an alteration, I am per- 
suaded, would be productive of a very great diminution of the 
fees both of officers, and lawyers, by promoting the dispatch 
of juridical business, and, of course, l)y discouraging litigious- 
ness. 

" Objection. Though the legality of the late regulation of 
fees be determinable in the ordinary judicatories, and course 
of proceeding, yet that does not prove any diffi^rence between 
this regulation, and thg levy of ship-money : for the legality 
of ship-money was determined in the same course. 

"Answer. This, at best, is a weak cavil founded on disin- 
genuous misrepresentation. When the regulation of fees was 
pronounced to be an imposition of tax, as arbitrary, and 
tyrannical, as the ship-money, I stated each measure, to prove 
their dissimilarity. I shewed that the proclamation issued 
with the professed design of preventing excessive exactions — 
that it restrained the officers — tliat there icas no enforcement 
provided or attempted, against the people — that the officer was 
to seek his remedy, where everj^ other creditor is entitled to 
relief — that the effect of the regulation, as to the people's 
payment, 'depended upon its legality determinable in the 
ordinary judicatories,' thei^e being no degree of enforcement, 
except lohat should, he derived from the tan- in its regular, ordi- 
nary coarse. — That King Charles having determined to govern 
without a parliament had, against the fundamental principles 
of a free constitution, recourse to the prerogative for raising 
money on the subject, and in pursuance of this scheme of 
tyranny, the ship-money was raised on the whole kingdom, 
that writs, directing the collection of the tax, required the 
sheriffs to execute the effects of the people, and to commit to 
prison all who should oppose it, there to remain till the King 
should give order for their delivery ; but these expressions, 
occurring in the State, ' its legality is determinable in the ordi- 
nary judicatories,' are selected by the objectors, as if the proof 
of the transactions of the ship-money tax, and of the legula- 



GOVERNOR EDEN's ADMINISTRATION. 175 

tion of fees, having diiferent principles, and efltects, rested 
merely on this circumstance ; and moreover, the egregious mis- 
representation of my argument turns out to be of no use in 
the application, through their extreme ignorance of the sub- 
ject : for the question, respecting the legality of the ship- 
money tax was not determined in an ordinary judicatory, and 
course of proceedings. 

" Objection. There has been no such necessity on account of 
the costs, as will justify the regulation of fees : for if fees are 
taxes, and taxes can be laid by the legislature only, the neces- 
sity of settling the rates ought to have been urgent, and 
invincible, which was not the case ; but if the necessity was 
invincible, they, who advised the regulation, ought to have 
seen, that it was not occasioned by their fault ; for if so, the 
the necessity is their accusation, and ]iot their excuse. The 
blame of the supposed necessity is imputable to those, who 
apprehended a diminution of income by a legal regulation of 
fees, and have exposed their country to all the difficulties, and 
distress ' which the wanton exercise of arbitrary power was 
sure to introduce.' This objection is principally drawn from 
some pulilications, on the attair of the embargo in the Oth or 
7th year of the present King. 

"Answer. The occasion, and nature of the necessity to 
ascertain the fees, the officers were entitled to. for the purpose 
of enabling the judges to award costs, administer justice, and 
execute the laws, have been fully explained, and the question, 
whether these fees are taxes has been already discussed in 
this paper — the fixing of the rates of fees <dwat/f> due, I con- 
tend, is not a tax, and if not, the objection made on the hypo- 
thesis that it is, of course fails. The reasoning applied, in 
the publications on the affair of the embargo, to that sudden, 
and, ^5e(v/?MAr necessity, which, if not immediately provided 
against, would endanger the publick safety, it would be easy 
to prove, if not entirely impertinent, is quite foreign to our 
question. The necessity, I mentioned, is that ordinary obli- 
gation on those, who act in a judicial capacity, to discharge 



176 FIRST CITIZEN AJST) .\NTILON. 

their duty. The necessit}' of awarding costs tlows from the 
t)bligation the judges are under to give them by the statute law. 
The necessity of settling the rates flows from the obligation 
they are under by the same law to award certain costs. Whose 
fault it was, that a legislative regulation did not take place, in 
consequence of the disagreement between the two houses, is a 
question not determinable in any jurisdiction, or by any legal 
authority, neither branch being amenable to any superior 
court. Uncommonly indistinct must the ideas of the objectors 
be, who confound the authority of a branch of the legislature 
to propose, or reject, with the functions of ministers? 

"On the question, which of the two liranches was blame- 
able, very opposite suppositions may be made, imputations 
cast, and with equal decency, and propriety. On the one side 
it has been supposed, tliat avarice prevented the regulation of 
fees, because it would have been productive of a diminution of 
income — on the other side it may be alleged, that a very con- 
siderable diminution was agreed to, at least of one-third, in 
the alternative to pa}' in money, or tol^acco, and that the 
imputation of avarice might be cast by men, disposed to find 
fault, and who have the arrogance to expect, that their dictate 
ought to be a rule to govern the conduct of others, if a dimi- 
nution of two-thirds had been agreed to, and their proposition 
of a still greater reduction rejected — that if the regulation of 
the clergy, and officers had been established on the terms 
proposed by the upper house, general satisfaction would have 
been given, and therefore this branch deserves no reproach, 
who ofiered their consent to a measure, which, if adoj)ted by 
the other, would have been thus satisfactory — that this regula- 
tion was rejected through the influence of men, whose aim it 
was to create confusion, and popular discontents, which they 
have many opportunities of fomenting by their declamations 
and harrangues, in which they afiirm, with yevy little scruple, 
what may subserve the purposes of pleasing their vanity, 
magnifying their importance, celebrating their own pure, and 



GOVERNOR EDEN's ADMINISTRATION. , 177 

immaculate virtues, and gratifying their spleen against their 
political antagonists. A cleclaimer of tliis kind — 
' Confidens, tumidus, adeo sermonis amari, 
Sisennas, Barros ut equis precurreret albis. ' " 

( ' hie, si plostra ducenta, 

Concurrantque fore tri funera, magna sonabit 
Cornua (piod vincatque tubas. ' 1' 

must speak with great energy, and pursuasive force. Thus 
suppositions may be made, and imputations cast on either 
side ; but they concern not the question whether the regulation 
of fees always annexed to old, or constitutional officers, not 
grant huj fees )iot before due, but fixing their rates, be a tax, or 
not. 

" Objection. The council advised the regulation of fees. 
Such of the provincial judges as were of the council, concurred 
in the advice. The legality of the regulation may be ques- 
tioned before them, as judges; but this question was, ' in some 
degree,' prejudged by the advice they gave in council. The 
court of appeals is constituted of the council, and the question 
may ultimately receive a decision in this court. The council 
in Nov. session 1770 declined giving an opinion upon the 
question put by the lower house, ' whether any officer had been 
guilty of extortion by the usual charges,' upon this principle, 
that 'it might come before them for decision in the court of 
appeals.' 

*Contideut, and boisterous, of such bitterness of speech that he would 
outstrip the Sisennae, and Barri (most infamous for their virulence) if 
ever so well prepared to exert their talent. 

t — " When two hundred waggons croud the street, 
And three long funerals in procession meet. 
Beyond the fifes, and homes his voice he raises. 
And sure such strength of lungs a wonderous praise is." 

Francis. 



12 



178 FIRST CITIZEN AND ANTIIX)N. 

" Answer. Upon the principle of this objection^ the judges 
ought to establish no rule, 'till the legality of it is brought iu 
question before them by the contest of parties, because the 
rule would, in some degree prejudge the question of its legality, 
which a party may choose to advance, therefore no rules or 
-ordinances ought to be made by the courts, 'till a case between 
A. and B. is brought before them, and lawyers heard pro, and 
eon, on the legality of them. This objection is, to be sure, 
very ingenious, though an observance of the method suggested 
is liable to the dull exception, that it would promote litigation, 
and a considerable consequenti-al expense. The judges, with- 
out paying a just regard to the principle, have settled the rates 
of fees ; they have occasionally informed themselves, hy impan- 
elling a jury of oficers. The rates of fees have been settled in 
consequence of a royal commission issued on the address of 
the commons — the commons in 1752 thought the establish- 
ment of fees, the proper means of preventing excessive exac- 
tions. Yarious orders, and regulations of practice have been 
established by the courts, frequent have been the conferences 
of the judges for the purpose of settling general rules, and an 
uniformity of conduct. Judges have been called upon, in 
coulicil, to ad\dse their sovereign on questions of law. Judges, 
in inferior jurisdictions, have acted as judges, in the house of 
lords iu the same cause. In all the cases put, the objection 
would apply with equal force ; but I suspect, he would be 
deemed to be rather an odd sort of a person, who should make 
it, in any of them — it would be a very dititicult thing, such are 
the narrow prejudices of judges, to establish the liberal senti- 
ment — expedit reipublicae ut (non) sit finis litium, (it would be 
of publick advantage to have no end to suits,) and bring into 
contempt the adage, misera est servitus, ubi jus est vagum, 
(wretched is the slavery where the law is unsettled.) The 
question put In* the lower house, and which the upper declined 
answering, related to the construction of an act of assembly, 
and transactions under it, whether certain charges were crim- 
inal or not, and consequently whether penaliies had been incurred 
or not The principle, on which the upper house acted, will 



GOVEKNOK EDEN's ADMINISTRATION. 179 

best appear from their own words. :[ The regulation of fees 
was in prospect, the question was put to obtain an answer, with 
retrospect. The one to prescribe a rule for the future conduct 
. of officers, the other to draw a censure, of what they hod done. 

" Objection. Two of those, who advised the governor, were 
interested, and if a suit be brought before twelve judges, and 
two of them plaintiffs, should those two sit in judgment on 
their own case, and deliver their opinions in favor of their own 
claims, the judgment would be void. Besides in the present 
cases the other advisers might be swayed bj the prospect of a 
remote interest. The governor, as chancellor, might decree 
his own fees, under his own regulation, or refuse to affix the 
seals, without immediate payment. 

"Answer. This is putting one case, in the place of another 
of a very different nature. The advisers of the proclamation, 
restraining the officers, c??'*^ not act in the capacity of judges ; 
it flowed from the governor's authority over officers removeable 
by him, and as I have already said, his conduct was not to be 
directed by the votes of the majority of the advisers, they 
having no authoritative influence. I have already shewn that 
Lord Hardwicke had the advice, and assistance of the master 
of the rolls in settling the tables of fees, in which the fees, 
due to the latter, were included — that officers, and clerks of 
the courts have assisted the judges in their establishment of 
tables of fees. Their f)piuions were not binding, but their 

i"Tlie questious, as j'ou have proposed them, are of a very extraordi- 
uary nature, and of a tendency inconsistent with the spirit of our consti- 
tution. The resolves, or declarations of one, or both houses, however 
assertive in opinion, and vehement in expression, are not laws, nor ought 
they to be promulgated to intiuence the determination of the legal 
appointed courts. Juries, and judges ought there to give their decisions 
without prejudice, or bias. Whether any officer has been guilty of extor- 
tion, is a question, which neither your, nor our declaration ought to preju- 
dicate ; but that ou^" declarations held out to the publick would have, in 
no small degree, this effect, can hardly be doubted, and on our part, par- 
ticularly such a declaration would be the more improper, the last legal 
appeal in this province being to us: it would be to anticijjate questions 
before they come to us through their regular channels, to decide first, and 
hear afterwards." 



i80 FIRST CITIZEN AND ANTILON. 

information was called for. The authority to regulate was 
reposed in the chancellor, and judges, and the establishments 
flowed from their authority. As to the supposition that the 
other advisers might be swayed by their prospects, it is of 
such a kind, that it may be applied on all occasions — it may 
be api^lied to the most violciif demagoguts and experience would 
give it a colour. The absurdity in supposing, that the gov- 
ernor is included in a proclamation threatening those officers 
with his displeasure, who should not obey his orders, has been 
sufficiently exposed. If he should have occasion to sue for 
fees due to him as chancellor, he could not, in the coiirt, where 
he is the sole judge. He receives his fees now, and would be 
equally entitled to receive them if the proclamation had not 
issued. This part of the objection is not more extraordinary, 
on account of the extreme ignorance it betrays, than on this, 
that the fee for the seals was the same in all the proposed 
regulations. 

" Objection. Any person, the least accpiainted with the 
arguments in favour of ship-money, and the dispensing power, 
will perceive that Antilon's defence of the regulation of fees is 
a repetition, and revival of them ' tricked off in a new dress to 
hide their deformity, the better to impose on the unthinking 
and unwary.' 

"Answer. A jDerson, the least acquainted with those argu- 
ments, may imagine they have been revived ; but no one, well, 
or even a little acquainted with 'em, can. The assertion of the 
objectors is at random. They might as well have called the 
defence, a papal anathema, or bull in caena Domini — such 
imputations, unsupported by proof, would almost disgrace the 
character of a spouting declaimer, too contemptible to be 
regarded. 

"Objection. That the argument from precedents doth not 
prove the right ; it proves nothing more than a deviation from 
the principles of the constitution, in those instances, wherein 
the power hath been illegalhj exercised — that the inference 
from the precedent in New-York ought to be treated with 



GOVEKNOK EDEN's ADMINISTEATION. 18,1, 

great contempt, perhaps, even with some indignation, and a 
pamphlet is quoted to shew, that the argument from precedent 
is inconsistent with the doctrine advanced by tlie author of it. 
The quotation is too long to repeat here, and therefore I refei; 
the reader to the Citizen's last letter. 

"Answer. This pointless shaft hath been before thrown^ 
without reaching the object, and ' if I comprehend it right,' 
there would be no diificult}' in ascertaining the quiver, whence 
it was supplied. 

" ' The use of precedents, must be perceived, when the incon- 
veniencies of contention, which flow from a disregard of them 
are considered and especially when they are severely felt ; 
when we reflect, that the inlprcourse of the members of politi- 
cal bodies, the measures of justice in contests of private, 
property, the prerogatives of government, and the rights of the 
people are regulated by them.' (See the message from the 
upper house, December session 1765.) 

" But I most readily admit that, ' if what has been done, 
be wroiuj it confers no right' to repeat the wrong, that 
^oppression, and outrage can't be justified by instances of their 
commission,' and that ^ if a measure be incompatible ivith the 
constitutional rights of the subject, it is so far from being a 
rational argument, that consistency requires an adoption of the 
proposed measure, that, on the contrary, it suggests the 
strongest motive for abolishing the precedent, and therefore 
when an instance of deviation from the constitution is pressed, 
as a reason for an establishment striking at the root of all liberty, 
it is inconclusive.' 

" The precedents, I have cited, directly apply. I have not 
attempted to draw any consequences from them, in support of 
a ' measure incompatible with the constitutional rights of the 
subject, or an establishment striking at the root of all liberty.' 
The common law results from general customs, precedents ure 
the evidences of these customs, judicial determinations and . 
decisions the most certain proofs of them, and the arguments 
therefore from precedents, the practice of courts, the decisions 



182 FIRST CITIZEN AND AJmLON. 

of judges respectable for their knowledge, and probity, and 
from the convenience of uniformity, are of great weight. I 
have proved that justice can't be administered, nor the laws 
duly executed without a settlement of the rates of fees, that 
an authority to settle them is necessary to the protection of 
the people, who, if officers were not restrained, would be 
exposed to the hazard of very great oppression. The con- 
clvsion, I confess is not very favourable to the liberal sentiments, 
and generous views of tliose, ivlio are adverse to the narrow 
restrictions of systematical certainty, and if allowed to choose their 
ground, would, like Archimedes, undertake to turn the world, 
which way they jjlease. 

"* You knew me of old.' You lave the advantage, if your 
memory hath not been impaired, for I did not know you and 
yet Cimex, you have my wish, 

ut dique, deaeque, 

Vestrum ob consilium, donent tonsore * 



take back your shaft, and preserve it. There may be a future 
occasion, for its use. 

" Objection. If fees may be settled at one time, they may 
be increased at another, as happened in the year 1739, when 
the fees of sheriffs were increased by proclamation. 

"Answer. The end, or design of settling fees being once 
accomplished, I aj)prehend, on the principles I have fully 
explained, that the rates of them can't be altered, and there- 
fore, if the fees of sheriffs were increased in 1739, the measure ' 
was wrong; but I don't know, or believe that the fees of 
sheriffs were increased in 1739, having searched for the 
proclamation without being able to find it. In 1735 there was 
a petition from several sheriffs to the Governor in council for 
an allowance of several fees, alleged to have been omitted in 
the table, settled by the proprietary in 1733, and always 
established and allowed either by acts of assemby, or by the 

-" may the powers divine, 



For this same friendly assistance of tLine, 
Give thee a barber in their special grace." 



GOVERNOR EDEN's ADMINISTRATION. IBS' 

governors in council, and the fees so omitted were particular- 
ized in an annexed scliedule. The order on this petition was, 
that such of the fees omitted in the table, as had been settled 
by any act of assembly, or former order, should be allowed to 
the sheriffs for their services, and no more. If this be the 
order meant by the objectors, it does not justify the idea they 
would convey, that the sheriffs' fees settled by the proclamation 
in 1733 were aftenronls increased: for the order extended only 
to the fees omitted in the table, settled by the proprietary. 

" Objection. If there was originally an authority, in this 
province, distinct from the legislative, to settle fees, that 
authority has been relinquished, because, as far back as 1638, 
a law passed for the limitation of the fees of officers, and, in 
1692, the Governor's power to settle fees was expressly denied 
by the lower house ; who insisted, that ' no officers' fees ought 
to be imposed upon them, but by the consent of the represen- 
tatives in assembly, and that this liberty was established, and 
ascertained by several acts of parliament, and produced the 
same with several other authorities. To which the Governor's 
answer was that his instructions were to lessen, and moderate 
exorbitant fees, and not settle them. To which the speaker 
replied, that they were thankful to his Majesty for the same, 
but withal desired that no fees might be lessened, or advanced, 
but by the consent of the assembly, to which the Governor 
agreed, and an act passed the same session for regulating offi- 
cers' fees.' And 'fees in this province have been generally 
settled by the legislature.' 

"Answer. When the Governor, in 1692, undertook to retju- 
late fees, there ivas an act of assembly for the purpose, and 
therefore he had no authority. Wlien the last proclamation 
issued, there was no act of assembly. There was no act of 
parliament in 1692 to prevent the settlement of fees by an 
authority distinct from the legislative, when an act of the 
legislature does not exist, by which fees are settled ; but there 
were various statutes, and authorities to prove, that the 
supreme magistrate can't control the operation of an act of the 
legislature. That this branch of the argument may be the 



184 FIRST CITIZEN AND ANTmON. 

better understood, I shall proceed to shew, how fees have 
generally been settled in this province, observing in the first 
place, that the charter, under which Ave derive the power of 
making laws, contains a grant to Lord Baltimore of 'all rights, 
jurisdictions, prerogatives, royalties, and royal franchises, in as 
ample a manner, as any bishop of Durham, within the count}' 
palatine of Durham, then, or, at any time before, had.' And 
also of power, ' to appoint judges, justices, magistrates, officers 
and ministers, and to, do all, and ever// other thing belonging 
unto the compleat establishment of justice, courts, tribunals, 
and forms of judicature, and manner of proceeding. ' 

"Between 1633, and 1637, the officers appointed by Lord 
Baltimore, or his Governors were authorized by their commis- 
sions to demand, and receive such fees, as were usually paid 
in England, or Yirginia for similiar services. 

" Li 1637, a bill for fees was framed, but not passed, in 
1638 an act passed, in which there is this clause 'all fees shall 
be paid according to a bill upon the record of this assembly, 
viz.,' that of 1637. In March 1611, it was continued to the 
next assembly, in 1642, the day after the session of assembly, a 
table of fees was settled, and published by the governor, and 
council, the act having expired, in 1669, on the petition of J. 
Gittings, for settling the fees of the clerk of the assembly, the 
Governor, and council ordered that he should receive treble 
the fees of a county clerk. 'In the year 1676, an act passed 
for limitation of officers' fees ; but before this act was framed 
the lower house were acquainted in a message from the upper 
that the chancellor's fees were, settled by the then late proprie- 
tary, and his present lordship would not consent to an act for 
settling the same, it being his prerogative, but that the list 
might be recorded in the journals of the house — whereupon 
the lower house voted, that they did not desire to intrench on 
Ids lordship's prerogative ; but all they aimed at was, that the 
inhabitants might certainli/ know what fees they had to pay, 
and since nothing could be more reasonable, and that the same 
should be settled, and published, thei/ reqnested his lordship to 
itsceriain the fees of all his officers, and that fair lists thereof 



GOVERNOR EDEN's ADMINISTRATION. 185 

might be drawu out with his lordship's assent, and copies 
sent to the countj courts to be published and recorded, and 
thai ai) act might Jh' ihawti up for fining tverij officer exceeding 
the sante.' Pursuant to tliis the j^erpetual act of 167(> passed 
with this proviso, ' if anj fees belonging to the several ofl&cers, 
and by the proj^rietarj, or governor, so alloived, and adjudged, 
and not in this act mentioned, then it shall be lawful to have 
such fees as the proprietary and council shall allow, and no 
more; under the penalty, etc.,' and there is a similar proviso 
in the other acts to the year 1725. In 1692, in a bill from the 
lower house for recording conveyances, the clerk's fees for the 
service were rated, to which the upper objected, that ' the 
settling of fees is a matter vested by their Majesties in the 
governor with the advice of the council. ' Tlie indefinite act 
of l(i7G fell under the general repealing act of 1692. 

" ' Governor Copley was empowered by his commission, and 
instructions from the crown to settle with the council, the fees 
of officers. In the commission from their Majesties to Mr. 
Blackiston, in 1692, to be commissary general, he was impow- 
ered to receive all such dues, and fees belonging to his office, 
as should be settled by their Majesties, or their cajjtain general, 
and council.' ' Governors Nicholson, Blackiston, Seymour, and 
Hart, the successive governors, after Copley, appointed by the 
crown, till Lord Baltimore was restored, were also respectively 
empowered to settle the fees of officers.' I have already 
observed, that the fees of officers in New York are settled 
under a royal commission — In 1733, the temj)orary act that 
regulated fees having expired. Lord Baltimore, in council, 
settled tables of fees, and the rates, thus settled, were adoj)ted 
by all the courts, and in all their judgments, and decrees pre- 
vailed as the rule, in awarding costs from 1733 to 1747, when 
the first inspection act i)assed. I have already taken notice 
of a decree of Mr. Ogle, ordering fees to be paid according to 
his lordship's settlement — in 1739 the upper house insisted, 
that 'the proprietary's authority to settle fees, when there is no 
positive law for tlmt purpose, is indisputable, and ajiprehended 
the exercise of such authority to be agreeable to the several 



186 FIRST CITIZEN AND ANTILON. 

instructions from the throne to the respective governments.' 
In 1755, the proprietary, asserted his authority to regulate 
fees, and objected to the inspection act, because the fees of 
officers were regulated by it, and the lower house being 
informed of it, in their address to the governor expressed 
their concern that, ' a regulation of fees agreed upon afier the 
most mature deliberation, that had subsisted for five years, been 
revived, and continued, should be objected to by his lordship, 
and declared it to be their opinion, that the parts of the act, 
respecting officers' fees, and foreign coins were of great advan- 
tage, and highly conducive to the ease, and quiet of the people.' 
Such were the sentiments of the lower house in 1755. 

"It appears, I presume, from these proceedings, there is 
but a very slight foundation for the objection, that there has 
been a relinquishment of any original authority to settle fees — 
temporary acts, after their expiration, cease to have any eon- 
troul, and even these acts are the less material, on this 
account, that the regulation of fees by them had an effect, 
which no authority but the legislative could give ; for as it 
might be inconvenient to many people to pay the officers 
immediately for their services, and to the officers, when they 
give credit to those who employ them, not to have festinum 
remedium (a speedy remedy) for the recovery of their dues, 
the several acts, regulating the fees of officers, have required a 
credit to be given, and allowed the fees to be collected by exe- 
cution. I did presume to say in my last letter, that 'the 
same authority, distinct from the legislative, which hath set- 
tled fees, may settle them, when the proper occasion of exer- 
cising it occurs,' having the countenance of the maxim, ' ubi 
est eadem ratio ibi est eadem lex ' (where there is the same 
law, where there is the same reason) and if maxims are dis- 
puted, there can be no end to controversy : for they can't be 
proved per notiora. (By any thing more known, or certain.) 
If it be said that the maxim has not been denied, I must 
observe that the attempt then was to evade it : for my posi- 
tion is not, that neiv fees may be imposed by the judges, but 
that, when fees are due, under a right, coeval with the original 



GOVERNOR EDEN's ADMINISTRATION. 187 

histitution of the offices, and the sum, or rate is not otherivise 
fixed, it may be settled by the judges ; that their authority in 
this is necessarily incident to their offices, and that they can't 
discharge their duty without an actual exercise of it. 

"The objectors have drawn all the inferences they could, 
to favour their purpose, from every precedent they have been 
able to collect, and yet, when apprehensive the argument would 
be retorted, they would have the proofs from precedents dis- 
regarded. Their definition of liberty, if corresponding with 
their conduct, I suspect, would be 'a licence to say, and do, as 
they please, with a power to controul the words, and actions 
of others. ' 

" Objection. If the fees of some of the officers should not be 
occasionally reduced, they would in time exceed the governor's 
income. 

"Answer. Such an event is not probable. As the governor's 
income must also increase, with the increase of fees, the 
trouble, and expeuce must increase. Stated salaries would 
prevent this effect. Such salaries were proposed by the upper 
house, and rejected by the lower. 

"Lord Coke, and Serjeant Hawkins have bestowed great 
commendations on this mode of provision, because officers, 
having stated salaries, would be under no temptation to 
increase, or multiply fees ; but our wiser men determined 
differently. The attorney, and solicitor general of England, 
Serjeant Wynn, and Mr. Dunning have presamed to be of 
opinion, that there may be a regulation of fees, in Maryland, 
without an act of assembly ; but our wiser men have declared^ 
the contrary, and who will be so 'daring' as to question their 
infaUihility. 'Homines indicium peritissimi investigatores, 
veri juris, et germanie justitife soliclam effigiem tenentes, non 
scientiarium umbras, et imagines sequentes.'* 

"Having examined the legal reasoning, with which the pro- 
found knowledge, eminent candour, and immense patriotism of 

*The most skilful index-hunters, possessed of the solid model of true 
law, and genuine justice, not followers of the shadows, and illusions of 
science. 



188 FIRST CITIZEN AND ANTILON. 

his learned, and very worthy associates have supplied him 
(associates whose honest indignation is naturally aroused by 
even/ breach of the laws, which have been ordained, in the 
dearest terms, to prevent exaction of excessive fees, because they 
have exhibited the most conspicuous examples of their oivn pure ' 
moderations, and strict ohservence of them) I shall now more 
immediately address the first Citizen. 

"'His grave observation, that the prince, who j)laces an 
unliiaited confidence in a had, minister, runs great hazard of 
having that confidence abused etc' has the 7nerit of being true. 
'"Ille magno conatu magnas nugas dixerit.' 

"The man iu troth, with much ado, 
Has fouud that one, and one make two." 

"But I must, in the most direct terms, contradict all his, 
assertions of the influence of a minister in Maryland ; asser- 
tions most infamously false, dictated by the most corrupt 
heart, and persisted in with the most profligate, impudence. 
It is very merciful, indeed, that ' he has not comjoared Antilon, 
with Sejanus' — that he has not. insinuated there is an Apicius, 
dives, et prodigus, and included stuprum <tc. and that he has 
only referred to some qualities in the character of Sejanus, 
which I have the comfort to know are most opposite to the 
character of Antilon. How plainly do such foul emanations 
indicate their putrid source? Should I, Mr. Citizen, repre- 
sent you to be a man 'tetra inflatus libidine, et consuetus 
alienas permolere uxores,' (of the most abandoned lust accus-' 
tomed to debauch other men's wives) and refer the gentle 
reader to Trivetas's character of Clodius, would you not be 
apt to exclaim, ' I debauch other men's wives ! At what calumny 
will falsehood, and malice stop? I debauch other men's 
wives ! Nothing in the world can be more remote from my 
character.' 

" Unde petitum " 

" Hoc in me jacis ? Est auctor quis denique eorum 
Vixi cum quibus ? " 

(" Is there, with whom I live, who know my heart? 
Who taught you how to aim yourvenom'd dart.") 



GOVEKNOK EDEN's ADMINISTRATION. 189 



"Mea siifficit una." 



"( ' I am no rover.') Indeed, Mr. first C-itizen, I Don't 
believe yon are, any more than I believe yon to be a man of 
honour, or veracity. 

" Your assertion that the proclamation proceeded from the 
advice, and overruling influence of one man, I have most 
expressly contradicted. The governor's declarations have con- 
tradicted it. The members of the council know it to be abso- 
lutely false —many of them have already avowed the part they 
took in the measure, and expressed their resentment of the 
indignity of your imputation. What I have advanced on this 
topic is a direct appeal to those, who are acquainted with the 
transaction, and the onhi persons acquainted with it, and still 
you persist in your asseverations, as if you exjoected, that the 
most pertinacious impudence would cover the deformities of 
the basest malignity, and most profligate mendacity. 

" Multa mains simulas, furiata mente laboras, 
Improbus, A' stultus nuUo moderamine vinctus 
Viututis 

(" The knave and fool together join'd, 
No rules restrain, no tie can bind, 
Perpetual slave to fraudful art, 
Whilst rage, and malice swell your heart.") 

" My appeal, he alleges, is with the view of ' engaging the 
governor, and council in my quarrel.'' A man is charged with 
being the sole author of a measure published as the act of 
several persons, and these only are acquainted with the origin, 
progress, and conclusion of it. The accuser was not only no 
party in the measure ; but was entirely excluded from all 
knowledge of the manner, in which it was conducted. The 
accused appeals to those who were concerned in, and perfectly 
acquainted with, the whole transacttion, and this appeal is 
attributed to the motive of engaging them in his quarrel. 
Again — the members of the council, the accuser suggests, 
' though sensible men, may have been oviwitied,' but they must 



190 FIRST CITIZEN AND ANTILON. 

still continue under the delusion, if thej were ' outwitted,' or 
thej would not, as men of honor, avow their opinion of the 
legality, and expediency of the measure, and that they were 
equally concerned in it with the accused. If they have dis- 
covered, that they were ' out iv It fed,' their conduct would be 
very different ; they would naturally express their indignation 
against the man, who had deceived them — to what an aston- 
ishing pitch of impudence has this Citizen arrived ! The 
absurd application of the maxim, 'the king can do no wrong,' 
to the governor (' because he is youthful and unsuspicious ') 
accountable for his conduct, and punishable by statute for 
acts of oppression, has been already shewn ; but the Citizen, 
in his last gallimausry, has introduced another maxim, as he 
calls it, that 'the king's speech is the minister's,' and applied 
this to the governor (' because youthfuJ and unsusjncious.' ) 
There is no end to such babbling — 

" break one cobweb through, 

He spins the flight, self-pleasing thread anew ; 

Destroy his lie, or sophistry, in vain, 

The creature's at his dirty work again!" , 

"What answer should I give, if hereafter he should think 
proper to assert, that the governor ought to be chosen by the 
council out of their own body, because the pope is chosen by 
the cardinals. He has given some smart proofs of a vei'satile 
genius. Though a papist by profession, he can be an advo- 
cate for the established church of England, when he speaks of 
the revolution. Such is his address, that he may hold one 
candle to St. Michael, and another to the dragon. 

" ' You knew me of old. ' Indeed. Pray, when did our 
acquaintance begin, how has it been improved into knowledge ? 
Perhaps your knowledge has been gathered in your flights, 
when you was gifted with the powers of Ariel. Hard is it 
upon a poor mortal to encounter such supernatural intelli- 
gences. 'I have always fathered my mischievous tricks upon 
others' — roundly asserted; but what proof have you? An 
unhappy wretch you are, haunted by envy, and malice. 



GOVERNOR EDEN'8 ADMINISTRATION. 191 

"Invidia Sicnli uon inveuere tyranni 

Majus tormentum " 

(" Sicilia's tyrants could not ever tiud 
A greater torment, than an envious mind.") 

" 'I want to engage you in a quarrel with the governor, and 
council. ' I have, indeed, been led by your false, and impu- 
dent accusations to take notice of the publick insult you had 
offered theui^, but the knowledge of their own conduct and the 
feelin(/s of their own honour, not my suggestions, or instigation, 
will influence their behaviour towards you. I have no spleen 
against Mr. Hume (as you have foolishly supposed) by whom 
I (have often been entertained, and wliose ingenuity, and 
literary talents I admire ; but that his history is a studied 
apology for the Stuarts, and particularly Charles the first, all 
men, conversant with the English history, and constitution, 
and not blinded b}^ prejudice must acknowledge. Without 
having recourse to the ' letters written upon his history, ' I 
, could point out very many instances to fix this character, if 
suitable to the design, and limits of this reply. The bill of 
, rights, which Charles the first endeavoured to evade by mean 
; prevarication, shews that the constitution was most clearly 
settled in the very point infringed by the ship-money levy. 
That the abdication ' rather followed, than preceded the revolu- 
tion, ' is the assertion of ignorance, or prejudice — the very 
defence of Jacobitism. The principle of it was stated in my 
former letter, from the reasoning of Hampden, Sommers, 
Holt, Maynard, and Treby. The Citizen may profess his 
attachment to the principles of the revolution, his regard for 
the established church of England, and his persuasion that it 
is inconsistent with the security of British liberty, a prince on 
the throne should be a pajjist, and expect his assurances 
(though he is a papist b}' profession) will be credited, because, 
as he informs us, 'his speculative opinions, in matters of 
religion, have no relation to, or influence over, his political 
tenets ; ' Init we are taught otherwise and put upon our guard 
by our laws, and constitution, which have laid him under dis- 



192 FIRST CITIZEN AND ANTILON. 

abilities, because lie is a papist, and liis religious principles 
are suspected to have so great influence, as to make it unsafe 
to permit his interference, in any degree, when the interests of 
the established religion, or the civil government, may be con- 
cerned. When in the ardour of his zeal, the Citizen ascribed 
to the resolves of one branch of the legislature an operation, 
which is the attribute only of a perfect legislative act, to check 
his temerity, I referred to former resolves of the same branch, 
on a subject, towards which, I imagined, he was not indifferent, 
and left him to reflect, what woiild have been the consequence 
of these resolves, on li is principle. 

"The Citizen's remark, on this intimation, is in general, 
evasive words, his usual manner. 'The unprejudiced will 
discern a wide difference between the two proceedings' — 
popery and officers' fees were not compared. The force of 
the resolves was the consideration, not the subjects of them ; 
and whatever constitutional force resolves may have on the 
subject of officers' fees, the same they can't but have, on the 
subject of popery ; but says the Citizen ' meminimus & igno- 
scimus' — 'we remember, and we forgive.' This is rather too 
much in the imperial style We! It is as little my wish, as 
the Citizen's to rekindle extinguished animosities ; tho' I think 
his conduct very inconsistent with the situation of a man, who 
owes even the toleration, he enjoys, to the favoiir of govern- 
ment. His threats, of what the next assembly may do, as if 
his influence would sway, his assistance be sought, or his 
advice admitted, in the proceedings of the delegates, notwith- 
standing he is not even allowed by our constitution to vote for, 
or in any manner, to interfere in the choice, of a delegate, are 
extremely impertinent. If, indeed, there should be a meeting 
of very different persons, at a very different place, Stentor, 
animated by the 'ear-piercing fife, and spii-it-stirring drum,' 
and 'mounted high on stage or table,' might perform wonder- 
ous feats, demonsfrnte by load assertion, and conderrin hy furious 
obloquy, his exertions invogorated by the applauses of surround- 
ing admirers. 



GOVEENOR EDEN's ADMINISTRATION. 193 



"Magno veluti cum flamma sonore 

Virgea suggeritur costis undantis alieni, 
Exiiltautque aestu latices ; furit intus aquae vis 
Fumidus, atque alte spumis exuberat amnis : 
Nee jam se capit unda, volat vaporater ad auras." 
" As when to the boilino- Cauldron's side 



A crackling flame of brushwood is apply'd, 
The bubbling liquors there, like springs, are seen 
To swell, and foam to higher tides within. 
Above the brims they force their fiery way. 
Black vapours climb aloft, and cloud the day " 

"I shall still adhere to the document of Minucius, 'let us 
not wish to injure those, who do not wish to injure us,' and I 
sincerely believe, that there are but few papists, natives of 
Maryland, who are not justly entitled to indulgence, on this 
principle. The Citizen's exposition of the quotation exceeds 
his usual absurdity, and is too contemptible for animadversion. 

"I shewed at large the Citizen's scandalous misrepresenta- 
,tlou of Petyt, and what is his answer? He could not mean 
to mislead, because he referred to the jus parliamentarium, so 
that the reader was to turn to the work (which is in the hands 
of very few) to escape deception. Again — in answer to the 
rebuke I gave him for the extreme ignorance, his reflections 
on the proceedings of the house of commons in 1752 betrayed, 
he denies that he meant what his words imported. The com- 
mons enquired into the abuses committed by officers, and the 
Citizen's reflection on this proceeding was in these words, ' if 
the commons had a right to enquire into the abuses committed 
by the otticers, they had (no doubt) the poiver of correcting 
those abuses, and of establishing the fees, had tliey thought 
proper.' His extreme ignorance having been exposed, he seeks 
to cover it by this pitiful prevarication, that he did not say the 
commons, alone, but that the commons had the power, and" meant 
that tJiey had 7iot the power, but with the concurrence of the 
other branches — ^for shame ! I said in my last letter, that the 

13 



194 FIKST CITIZEN AND ANTILON. 

Citizen had been constrained to admit, fees had been settled by 
the judges ; but this he denies, and quotes a passage from his 
letter, to which I did not alkide, to justify his deuiah I had 
observed, ' if the idea of tax be proper, then fees can be settled 
in no instance, except b}' the legislature ; but the lords, the 
commons, the courts of law, and equity in Westminster hall, 
the upper, and lower houses in Maryland have each of them 
settled fees.' Having himself quoted this part of my letter, 
his words are, ' they have so.' Was not this then a direct 
admission? How pitiful the evasion, when he was pressed 
with the consequence of his direct admission ? 

^'He having quoted Montesquieu, I observed, how crude the 
Citizen's ideas of the British polity were, and shewed how 
little countenance was given to his suggestions by that cele- 
brated writer ; but let him have his way, and he will always 
have an answer in some tiny evasion, or puny cavil — ' Antilon's 
strictures on the Citizen's crude notions fall entirely (says he) 
on Montesquieu, and the writer of a pamphlet.' 

" Velut Aegri somnia, vanae 

Tingentur species " 



-" He, like a sick man's dreams, 



Varies all shapes, and mixes all extremes." 

" But here I take my leave of him, till he shall have made 
a new collection of law from the bounty of his learned asso- 
ciates in politicks, as little school-boys do of sense by begging 
it of then- seniors, when their masters set them themes. ' Id 
maxime quemque decet, quod est cujusque suum maxime,' 
(that most becomes a man, which is most properly his own) 
was the saying of a wise man ; but a fool may choose, 
" in florid impotence to speak, 



And, as the prompter breathes, like a poor puppet squeak." 

Antilon. 

p, s. — The First Citizen has admitted my account of the 
shi]5-money to be, " in the main, true, and yet (he says) it is 



GOVERNOR EDEN's ADMINISTRATION. 195 

not entirely impartial ; for there may be a relation of facts, gen- 
erally true, and yet by suppressing some circumstances, the writer 
may either exaggerate, or diminish, and so, greatly alter their 
cJmracter, and complexion^ Thus, reader, according to this 
Citizen's conscience, an account of a transaction may be, " in 
the main,'' or substantially true, though "the character, a.nd com- 
plexion of it be altered by exaggeration, or diminution" — 
unwarily, has he betrayed the principle, on which he has 
affirmed, or denied, with the most infamous mendacity. 



196 FIRST CITIZEN AND ANTILON. 



CHAPTER 13. 

FOURTH LETTER OF FIRST CITIZEN. 



1773. Charles Carroll, of Carrollton, closed the discussion 
with this letter, published on the 1st of July, 1773 : 

" 'TJiough our kings can do no wrong, and though they cannot 
he called to account hy any form our cowfiiiiuiion prescribes, their 
ministers may. They are ansiverahle for the administration of 
the government, each for his particular part, and the prime or 
sole minister, ivhen there happens to he one for the whole ; he is 
tJie more so, and the more justly, if he Itath affected to render him- 
self so, hy usurping on his fellows, hy wriggling, intriguing, 
whispering, ciAui bargaining himself into this dwnjerous post, to 
which he was not called hy the general suifrage, nor perhaps, hy 
the deliherate choice of his master himself 

Dedication to the dissertation upon parties. 

" The noble author of the dissertation upon parties begins 
his fourth letter with the following sentiment taken from 
Cicero's treatise on the nature of the gods — 'Balbus, when he 
is about to prove the existence of a supreme being, -makes this 
observation (opinionum commenta delet dies, naturae autem 
judicia confirmat) : Groundless opinions are destroyed, but 
rational judgments, or the judgments of nature, are confirmed 
by time.' The observation may be applied to a variety of 
instances, in which the sophistry and ingenuity of man have 
been employed to confound common sense, and to puzzle the 
\inderstanding, in order to establish opinions suited to the 
viewfi of interest, or of poAver. 

"An examination of Antilon's arguments, and answers to 
mine, will show how forcibly the judicious remark of Balbus 
applies to the legal subtleties and metaphysical reasoning of 



GOVERNOR EDEN's ADMINISTRATION. 197 

ni}^ adversary. I shall take bis arguments and his answers 
nearly in the order they occur in his last paper. 

" The revival of the governor's authority to regulate the fees 
of officers, on the expiration of the inspection law, is admitted, 
provided that authority had a legal existence ; but the legality 
of the authority is denied ; for, whether it be legal or not, is 
the very matter in debate — ' The officers being old and consti- 
tutional, and supported by incidental fees, the right to receive 
such fees is old and constitutional,' and therefore my adversary 
would infer, that the fees settled by proclamation are old and 
constitutional. 

" This inference does not follow from the premises notwith- 
standing the crafty insertion of the word such. The officers 
being old, the right to receive fees may be old; but the 
question recurs, what fees? of whom"? where resides the 
authority of fixing the rates ? for, fixed they must be, by some 
authority. That they may be fixed by the legislature, is 
admitted on all sides ; should the different branches of the 
legislature disagree about the settlement, what authority must 
then interpose, and settle the rates hitherto unascertained? 
Antilon contends that in such case, the supreme magistrate, or 
the judges acting under an authority delegated from him, may 
settle them. If this doctrine be constitutional, what security 
have we against the imposition of excessive fees ? Does it not 
give a discretionary power to the governor of making what 
provision he may think proper for his officers, and of rendering 
them independent of the people? When a service is j^er- 
formed, the performer is clearly intitled to some recompence, 
but whether he is to receive that recomj^ence from the j)erson 
served, or from another, may be a matter of doubt ; the quantum 
of the recompence may not be ascertained, either by contract, 
by usage, or by law ; and then in case of a dispute, must be 
settled by the verdict of a jury. 

"If the authority to regulate the fees of officers by proclama- 
tion be illegal, the proclamation can prevent the extortion of 
officers ODly by operating on their fears of the governor's 



198 FIRST CITIZEN AND ANTELON. 

displeasure, and of a removal from office ; * Biit if the procla- 
mation had not issued prohibiting the officers from taking 
other, or greater fees than allowed bj the late inspection act, 
then would the officers have had it in their j^ower to have 
demanded any fees.' 

"Their rapacitj perhaps might have prompted them to 
demand most excessive fees ; but under what obligation were 
the people to comply with their exorbitant demands ? 

" Suppose a person should carry a deed to be recorded in the 
provincial office ; the clerk refuses to record it, unless the 
party will pay him fifty guineas; must he submit to this 
unreasonable exaction, or run the risk of losing his property 
by suffering his title to remain incompleat? To avoid that 
danger, the money is paid ; will he not be entitled to recover 
of the officer by the verdict of a jury, what they might think 
above the real value of the service? or suffering his title to 
remain incompleat, might he not sue the officer for damages, 
first tendering a reasonable fee adequate to the trouble and 
expence of recording the deed? Answer, Antilon, Avithout 
equivocation, yes — or no. If the officer might be indicted for 
extortion, what benefit could the people expect from such a 
prosecution, when the power of granting a noli jDrosequi is 
confessedly vested in the government ? The present regula- 
tion, we are told — 'contains no enforcement of payment from 
the people, the officer being left to his legal remedy. ' There 
is not, it is true, any immediate enforcement of payment, 
unless indeed the officer should refuse to do the service, if not 
paid his fee, at the very instant of performing the service, 
which as I formerly remarked, would be in most instances an 
effectual method of enforcing payment. 

"Suppose the officer should not insist on an immediate 
payment, and that his account of fees should be contested : 
he brings an action to recover his fees, according to the very 
settlement of the proclamation; to whose decision is this 
question to be left ? To the judges ? or to a jury ? If to the 
former, and they should be of opinion, that the governor has 



GOVERNOR EDEN's ADMINISTRATION. 199 

a riglit to regulate fees by proclamation, when there is no 
prior establishment by law, and the defendant should refuse 
to submit to the sentence* of the court, he will be committed 
to jail, or the sum will be levied by execution of his effects ; 
distress, though delayed for some time, will surely overtake 
him in the end. Some of the judges discover a disinclination 
to remain in office ; they solicit a removal ; granted, and 
approved of ; others are requested to succeed them ; should 
we not have cause to suspect the rectitude of application made 
to men, who have publickly declared their opinion of the 
legality of the measure, attempted to be enforced hj the 
sanction of tlie courts of justice? 

" Other methods may be employed to enforce the proclama- 
tion. The frowns of government will awe the timid into a 
compliance; the necessitous cannot withstand the force of 
temptation, or the threats of power; the disobedient, and 
refractory must relinquish all hopes of promotion, or of pro- 
moting their friends ; who have favours to ask at court, must 
merit court-favour by setting examples of duty, and sub- 
mission. 

"It has been alleged that fees are taxes; to prove the 
assertion, the authority of Coke, and reasons grounded on 
the general principles of the constitution have been produced : 
mark, how Antilon has endeavored to get over the authority, 
and confute the reasons. One of the great objections to the 
proclamation is, that it imposes a tax on the people, and con- 
sequently is competent to the legislature only. Antilon con- 
tends, that fees are improperly stiled taxes, because they have 
been settled by the separate branches of the legislature, which 
only can impose a tax. I have already exposed the sophistry 
of this argument, I hope, to the satisfaction of the unpre- 
judiced ; some farther elucidation however, may be necessary 
to men not thoroughly conversant with the subject. The lords 
and commons, and the upper and lower houses of assembly 
have each separately settled the fees of their respective 
officers by the particular usage of parliament, which must be 
deemed an exception to the general law, and oiight, as all 



200 FIRST CITIZEN AND ANTILON. 

exceptions, to be sparingly exercised, and in such cases, and 
in such manner onlj, as the usage will strictly warrant. It 
was foreign to my purpose to inquir© into this usage, custom, 
or law of j^arliameut, to investigate its origin, or to examine 
its constitutionality. On an inquiry, it would perhaps be 
found co-eval wath parliaments. But do you, Antilon, admit 
the right of the lower house to rate the fees of its officers? 
If you do not admit the right, to argue from the mere exercise 
of it, is certainly unfair in you. You still insist that I have 
admitted the right of the judges to settle the fees of officers 
attendant on their courts ; be pleased to turn to the passage 
in my answer to your first paper, part of which you have 
cited, and then be candid enough to acknoledge, if you have 
not wilfully misrepresented, that you have mistaken my 
meaning. 

"The major proposition, that taxes cannot be laid, but by 
the legislature, I have admitted with this exception, 'saving in 
such cases, (fee' 

" It was not incumbent on me to prove the excei3tion, it is 
sufficiently proved by the journals of j^arliament ; the right, or 
the power, if you like that word bet^ter, has been frequently 
exercised, whether constitutionally, or not, is another question. 
The two houses of parliament are the sole judges of their 
own privileges, with w^hich I shall take care not to inteimeddle. 
Inconsistencies in all governments are to be met with ; in 
ours the most perfect, which was ever established, some may 
be found. 

"A partial deviation from a clear and fundamental maxim of 
the constitution cannot invalidate that maxim. 

" To explain my meaning. It is a settled principle of the 
British constitution, that taxes must be laid by the whole leg- 
lature, yet in one instance, perhaps in more, the principle hath 
been violated. The separate branches of the legislature have 
settled the fees of their own officers Antilon has inferred 
from that exception to the general rule, or maxim, which 
exception should be considered as the peculiar privilege of 



GOVERNOR EDEN's ADMINISTRATION. 201 

parliament, ' that fees are not taxes.' He has admitted, (if I 
comprehend his meaning) that fees are sometimes taxes, that 
is, when imposed by the legislature ; but when regulated by 
the judges they come not within the legal definition of a tax. 

"Thus the fees regulated by the late inspection law were 
taxes : the same fees now attempted to be established by 
proclamation cease to be taxes because regulated by an auth- 
ority distinct from the legislative; but are their nature and 
effects altered by these two different modes of settlement? 
should an act of parliament pass for the payment of the 
identical fees, said to be paid to officers, under the sole 
authority of the judges ; according to Antilou's doctrine, the 
fees thus established by act would become instantly taxes ; but 
are they less oppressive, because settled by the discretion of 
the judges ? I presume to think them more oppressive, because 
of a more dangerous tendency, particularly if on a disagree- 
ment between the branches of the legislature, that authority 
may interpose, and establish the very fees, and along with 
them a variety of abuses, which the representatives of the 
people wish to have reformed. ' The judges are not governed 
by the law of parliament, they have no authority to tax the 
subject, but their allowance of fees to their necessary officers 
is lawful' — of ancient fees — admitted. I had observed — ^ It 
does not appear that the Judges have ever ittiposed )iew fees by 
their sole autlioritij.' In answer to this Antilon remarks: — 
'that the fees when originally allowed were new, and the allow- 
ance being made by the judges therefore they originally allowed 
new fees, and if fees were originally taxes when new, they have 
not ceased to be taxes in consequence of the frequent repeti- 
tion of the acts of payment and receipt, and of their havgin 
obtained the demmiination a)itient fees' — It will be proper to 
remind Antilon of another observation, which I made in mj 
former papers on this very subject, and of which he has taken 
no notice. The King originally paid all his officers out of his 
own revenue ; the subject was not taxed to support the civil 
establishment ; in extraordinary emergencies, as foreign, or 



202 FIRST CITIZEN AND ANTILON. 

civil wars, tenths, fifteenths, and other impositions were gi-anted 
by the commons in parliament to defray extraordinary expenses. 

"It was consistent with the principles of the constitution, 
and agreeable to justice, that the King avIio paid aU his officers 
out of his own purse, should have the right of ascertaining 
their salaries, or of delegating that right to his judges. 

" The antient fees so often spoken of, were those perhaps, 
which the King formerly paid, and were settled by the judges. 
I say perhaps, for in a matter so ^obscure, it would be rash to 
pronounce decisively. If I am right in this conjecture, antient 
fees were not originally taxes, because not paid originally by 
the people. Ancient usage according to Bacon gives fees an 
equal sanction with an act of parliament, upon this principle I 
apprehend, that such fees are presumed to have been originalW 
established by the proper authority, although their com- 
mencement and the authority, which imposed them at this day 
be unknown — 'At common law, none of the King's officers, 
whose offices did a)i7/ loay concern the administration ol justice, 
could take any reward for doing their office, but what they 
received of the King' — These words are sufficiently compre- 
hensive to take in all the inferior ministers and officers of the 
courts of justice. The fee of 20s. commonly called the bar 
fee — was Um antient fee, says Coke taken time out of mind by 
the sheriff — of every prisoner acquitted of felony ; ' and there- 
fore according to the above principle laid down by Bacon^ 
acquired an equal sanction with fees established by law — 'an 
office erected for the publick good, though no fee is annexed 
to it, is a good office, and the party for the labour and pains, 
which he takes in executing it, may maintain a quantum meruity 
if not as a fee, yet as competent recompence for his trouble.' 
This clearly relates to an office newly erected ; but what 
follows seems to include the unsettled fees of all offices new 
and old. ' Where a person was libelled in the ecclesiastical 
court for fees, upon motion, a prohibition was granted — for no 
court has a power to establish fees ; the judge of the court may 
think them reasonable, but this is not binding.' But if on a 



GOVERNOE EDEN S ADMINISTRATION. 



205 



quantum meruit — a jury think them reasonahle, then they 
become established fees — probably the fees, which now p;o under 
the denomination, antieut fees, and not expressly given by act 
of parliament, were originally established by the verdict of a 
jury, and their having been long allowed by the courts of 
justice, may be deemed presumptive evidence of such estab- 
lishment. The method of reforming abuses in the courts of 
justice by the presentment of experienced practicers upon oath, 
appointed by the judges, to enquire what fees had been exacted 
other than ' the antient and usual fees,' seems to favour this 
conjecture. 

'"In the year 1743 an order was made in chancery by Lord 
Hardwicke reciting, that the King upon the address of the 
commons, had issued his commission for making a diligent 
and particular survey, and view of all officers of the said 
court, and inquiring what fees, and wages every of those 
officers might, and ought laivfuUy to have in respect of their 
offices, and what had of late time been unjustly incroached, and 
imposed upon the subject ttc' — 'Then are added' — continues 
Antilon ' tables of fees of the respective officers, and among 
the fees settled by this order are the fees of the master of the 
rolls, ' who advised and assisted the chancellor in making the 
settlement. How is this transaction to be reconciled with the 
doctrine of Hawkins, 'that the courts of justice are not 
restrained from allowing reasonable fees to their officers, as 
the chief danger of oppression is from officers being left at 
liberty to set their <nv)i rates and make their oirii' demands?' 
In this instance certainly, if by the settlement aforesaid an 
imposition of new fees, and not an authentication of the old 
and established fees be understood, the master of the rolls was 
advised with, and assisted in settling his own rates. Is tliig 
proceeding consonant to the princij^les of justice? What says 
Hawkins!'' 'There can't be so much fear of abuses when 
officers are restrained to hiown and stated fees, settled by the 
discretion of the courts, because the chief danger of oppres- 
sion ' — &c. Should the judges be any ways interested in the 



204 FIRST CITIZEN AND ANTILON. 

settlement (A) of their officers' fees, would not the reason 
assigned bj Hawkins for the interposition of their authority, 
in the manner explained by Antilon, operate most forcibly 
against the exercise of it ? "Would it for instance be agreeable 
to equity and natural justice, to j)ermit the secretary of this 
13rovince to settle the fees of the county clerks, on the gross 
amount of whose lists he receives a clear tenth ; carry the case 
a little further : suppose the practice had long prevailed of 
offering the secretary a genteel present on every grant of a 
commission for a county clerkship. Would it not be his 
interest to enhance the value of county clerkships? The 
gratuity would probably bear some proportion to the value of 
the place bargained for. Do the judges in Westminster-hall 
receive gratuities on granting offices in their appointment? — 
If they do, Hawkirs' reason is felo de se — it is the strongest 
that can be urged against the power, which it is meant to 
support. 

" If the judges have an interest in the offices in their dis- 
posal, a discretionary power to allow fees to their officers, is 
in some measure a power of settling their own rates and 
making their own demands. Coke's authority proves most 
clearly, that new fees annexed to old offices are taxes; whether 
the fees settled by proclamation are new fees remains to be 
considered ; ' fees, says Antilon, may be due without a precise 
settlement of the rates, and the right to receive them, may be 
co-eval with the first creation of the offices, as in the case of 
our old and constitutional offices ; when such fees are settled 
they are» not properly neiv fees, and therefore a regulation 
restraining the officer from taking beyond a stated sum for 
each service, when he was before iutitled to a fee for such 
service, is not granting or annexing a new fee to an old office.' 

"The question therefore is now reduced to these two points — 
Ist.^Has not government attempted to settle the rates of officers' 

(A)"If such settlement implies a discretionary power in the judges to 
fix the precise rates to be paid to their officers, when they are not fixed by 
ancient usage, the verdict of a jury, or by act of parliament. 



GOVERNOR EDEN's ADMINISTRATION. 205 

fees by proclamation ? 2dly. Are not fees so settled — new fees ? 
If they are, upon Antilon's own principles, government hath 
no right to settle them. The restraint laid on officers, by the 
proclamation from taking oih,er or greater fees, than allowed 
by the late regulation, can be considered in no other light, 
than an implied affirmative allowance to take such fees^ as 
were allowed by that regulation, and of course must be deemed 
an intended settlement of the rates. (B) The fees payable to 
our old, and constitutional officers, have been differently rated, 
by different acts of assembly ; those various rates, were never 
meant to be extended beyond the duration of the temporary 
acts, by wdiich they were ascertained, for, one principal reason 
of making those acts temporary, w^e have seen, was to reduce 
the rates occasionally, and to lessen the biirthon of them. On 
the expiration therefore of the late inspection law, the regula- 
tion of officers' fees expired with it, that is, there remained no 
obligation on the people to pay the rates settled by that, or 
any former regulation, and consequently the fees, as to the 
quantum, or precise sum, were then unsettled. Government 
entertained the same opinion, and issued a proclamation to 
ascertain the rates, or as is sometimes pretended, to prevent 
extortion, because the rates being unsettled, the officers might 
have demanded any fees ; the fees therefore not being settled, 
when the inspection law fell, the settlement of them by procla- 
mation was a new settlement, and of course the fees so settled 
were new ; but new fees according to Coke cannot be annexed 
to old o^ces unless by act of parliament ; his authority there- 
fore, even as explained by Antilon, proves that a settlement 
by proclamation of fees due to old, offices is illegal. A mere 
right in officers to receive fees, cannot be oppressive ; the 
actual receipt only of excessive or unreasonable fees is 
oppressive, now, who are the properest judges whether 
fees be excessive or moderate? Officers certainly are not, 
the same objections which may be made to their decision, 
apply to the governor, and most of them to the judges — 

(B) I say intended, because the settlement by proclamation being illegal, 
is in fact no settlement. 



206 FIRST CITIZEN AND ANTILON. 

juries may be partial, or packed. All these considerations 
plead strongly for a legislative regulation, which is liable to 
none of the objections hinted at. The doctrine laid down by 
Antilon in opposition to Coke's, teams with mischief and 
absurdities — ' Old officers have a right co-eval with their insti- 
tution to receive fees,' the inference therefore ^when. their fees 
are not ascertahied hy the legislature, the judges may ascertaiu, 
them ' is by no means logical, it contradicts the most notorious 
and settled point of the constitution, it lodges a discretionary 
power in the judges appointed by the crown, and formerly 
removeable at pleasure, to impose excessive fees, and conse- 
quently to oppress the subject, without a possibility of redress, 
should the king, or lords refuse to concur with the commons 
in passing a law to moderate the rates, and to correct abuses — 
' The governor adojjted the late rates as the most moderate of any' 
— If he might have adopted any other rates, his exceeding 
lenity deserves our warmest thanks ; but then we are more 
indebted to his indulgence, than to the limitation of preroga- 
tive ; we cannot therefore be said to enjoy true liberty, ' for 
that, (as Blackstone justly observes) consists not so much in 
the gracious behaviour as in the limited power of the sover- 
eign.' According to Antilon — 'The late regulation of fees 
expiring with the temporary act, the governor's authority to 
settle the rates revived,' and he insinuates, 'that it was 
optional in him to adopt the rates of the late, or of any prior 
regulation, or even to prescribe rates intirely new\' If the old 
and constitutional officers have a right to receive fees, have 
they not, it may be asked, a remedy to come at that right, and 
if so. What remedy ? The remedy, which the constitution has 
given to every subject under the protection of the laws. If a 
contest should arise between the officer and the person for 
whom the service is done about the quantum of the recom- 
pence, the former must have recourse to the only true, and 
constitutional remedy in that case provided, the trial by jury. 
Among other great objections to the proclamation, at least to 
Antilon's defence of it, are his endeavours to set aside that 
mode of trial, the best security against the encroachments of 



GOVERNOR EDEN's ADMINISTRATION. 207 

power, and consequently the firmest support of liberty. The 
person, who calls himself Antilon, has filed a bill in chancery 
for the recover}- of fees principally due for services done at 
common law : by appealing to the court of chancery, of 
which the governor is sole judge, and in whom, he contends, 
the will to ordain the rates, and the power to enforce them are 
lodged, he has endeavoured to establish a tyranny in a land 
of freedom. (C) In answer to the declaration of chief justice 
Koll — I shall give the declaration of a subsequent chief 
justice, of greater, at least, of equal authority. The case I 
allude to is reported by Lord Raymond 1 vol. p. 703 — It was 
asserted by council that the court of King's bench, or judge of 
assize respectivel}', would exert their authority and commit 
persons refusing to pay fees due to the old officers of the courts, 
and that this was the constant practice. 'But Holt, chief 
justice said, he kneAv of no such practice ; he could not com- 
mit a man for not paying the said fees. If there is a right, 
there is a remedy ; an indebitatus assumpsit will lie, if the fee 
is certain, if uncertain, a quantum meruit ' — and in both 
instances, a jury is to be judge. From hence it may be col- 
lected, that when the fees claimed by the old and constitutional 
officers were unascertained recourse was had to a jury, that 
their verdict might ascertain them. When fees are due to old 
officers, and not settled by the legislature, a jury only, upon 
the principles of our constitution, can settle them. 

"The uniform practice of the courts cannot establish a 
doctrine inconsistent with those principles. 'If on enquiry 
into the legality of a custom, or usage, it appears to have been 
derived from an illegal source, it ought to be abolished ; if 
originally invalid, length of time will not give it efficacy ' — It 
has been already noticed, that the authority exercised by the 
judges of settling fees, that is, of ascertaining the antient and 
leqal fees, in pursuance of a commission issued by the King, 
on the address of the house of commons, is very diflferent 
from the authority now set up, of settling fees by proclama- 

(C) See the governor's answer to the address of the house of delegates 
in 1771. 



208 FIRST CITIZEN AND ANTILON. 

tioii, issued contrary to the declared sentiments of the lower- 
house of assembly ; if judges in this province may settle fees, 
because the judges in England have settled them, in the manner 
above mentioned, where was the necessity of ascertaining fees 
by proclamation? Was it to influence and guide the decision 
of our judges'? If they have a right to exercise their own 
judgment in settling fees, in fact, in imposing them. Why 
was a standard held up by the supreme magistrate for their 
direction? In setting up that standard, is it not notorious, 
that he was advised, and principally guided by the very man, 
who is most benefited by that illegal settlement? Notwith- 
standing the misrepresented power of the English judges to 
regulate fees, and the different orders of the courts in West- 
minster-hall, for restraining the exaction of illegal fees, the 
encroaching spirit of office had rendered all the precautions 
of the judges ineffectual ; insomuch that the commons in the 
year 1730 were obliged to take the matter under their own 
consideration. I mentioned in a former paper that transac- 
tion. In consequence of the enquiry — a rej^ort was made by 
the committee in 1732 to the house of commons, from which 
I gave some extracts in my first answer to Antilon. It appears 
from the report, ' That orders had been sometimes made for 
the officers to hang up publickly lists of their fees, most of 
which lists are since withdrawn, or have been suffered to decay 
and become useless ; that the officers themselves seemed often 
doubtful what fees to claim, and viost of them relied upon no 
better evidence than some information from their predecessors, 
or the deputies of their predecessors, that such fees had been 
demanded, and received ' — it is hereby evident, that the regula- 
tion of officers' fees had been long neglected, that in conse- 
quence of such neglect, excessive abuses had crept into prac- 
tice, and had grown from length of time into a kind of 
established rights : that a thorough discovery and reformation 
of those abuses required more time and attention, than the 
commons could spare from more important objects. As well 
might they have attempted to cleanse the Augean stables, a 
work, which the strength only of a Hercules could accomplish ; 



GO\^ENOii kden's administration. 209 

disgusted with tha tedioii.sness and intricacy of the inquiry, 
they probably chose to refer the correction of abuses to the 
judges, men of integrity, and best acquainted with the prac- 
tices of their own officers, and of course, best qualified to 
reform them. It is asserted by Antilon that the legislative 
provisions do not extend to any considerable proportion of 
the fees of officers and therefore, that by far the greatest 
part of officers' fees hath been settled by allowance of the 
courts, and not by statutes — this fact may be admitted, 
and the inference he would draw from it be denied ; that 
judges have allowed fees to their officers in the first instance, 
without the intervention of a jury to ascertain them. If the 
judges have acted thus, they have certainly assumed a 
power contrary to the petition of right, contrary to this first 
and most essential jDrinciple of the constitution, 'that the 
subject shall not be compelled to contribute to any tax, 
tallage, aid, or other lil-e charge, not set by common consent in 
parliament ' — All levies of money from the subject, by way of 
loan, or benevolence, are also cautiously guarded against by 
the petition of right. The very puituig or seitlng a tax on the 
people, though not levied, has been declared illegal ; even a 
voluntary imposition on merchandize granted by the merchants, 
without the approbation of parliament, gave umbrage to the 
commons, was censured and condemned. ' This imposition 
though it were not set on by assent of parliament, yet it was 
not set on by the Kbujs absolute power, but was granted to him 
by the merchants themselves, who were to be charged with it. 
So the grievance was the violation of the right of the people in 
setting it on without their assent in parliament, not the damage, 
that grew by it, for that did o)di/ touch the merchants, who 
could not justly com'plain thereof, because it was their own act 
and grant ' — Petyt jus parliam. page 368, 3()9. — A tax may be 
defined a rate, settled by some publick charge, upon lands, 
persons or goods. By the English constitution the power of 
settling the rate is vested in the parliament alone, and in this 
province in the general assembly. 
14 



210 FIRST CITIZEN AND ANTILON. 

" Eepresentation has long been held to be essential to that 
power, and is considered as its origin : npon this principle the 
house of commons, who represent the whole body of the 
people, claim the exclusive right of framing money bills, and 
will not suffer the lords to amend them. The regulation of 
officers' fees in Maryland has been generally made by the 
assemblies. The authority of the governor to settle the fees 
of officers, has twice only, as we know of, interposed, but not 
then, without meeting with opposition from the delegates, and 
creating a general discontent among the people, a sure proof, 
that it has always been deemed dangerous, and unconstitu- 
tional. The fees of officers, whether imposed by act of assem- 
bly, or settled by proclamation, must be considered as a 
publick charge, rated upon the lands, persons, or goods of 
every inhabitant holding lands, or possessed of property 
within this province. That they have been looked upon as 
such by the officers themselves, is evident, from their lodging- 
lists of their respective fees with the deputies from this 
province, to the congress at New York, who might thereby be 
enabled to make known to his majesty, and to the parliament, 
the great expence of su23porting our civil establishment. The 
author of the considerations once entertained the same idea, 
but such is the versatility of his temper, such his contempt of 
ijonsistency, that he changes his opinions, and his principles, 
with as little ceremony as he would change his coat. Speak- 
ing of the sundry charges on tobacco — ' The planter (says he) 
pays a tax, at least, equal to what is paid by any farmer of 
Oreat-Britian possessed of the same degree of property, and 
moreover the planter must contribute to the support of the 
expensive iuferiial govcrnmoU uf the colony, in which he resides.' 
Nov^, the support of civil officers, unquestionably constitutes a 
part of that expence — he then refers to the appendix, where 
w© meet with the following note : 

" ' The attentive reader will observe, that the nett proceeds of 
ji hogshead of tobacco at an average are 4£ and the taxes 3£ 
together 1 £. — Quaere — how much per cent, does the tax 
amount to which takes from the two wretched tobacco colonies 



GOVEENOR EDEN's ADMINISTRATION. 211 

S£ out of every 7£ — aud how deplorable must their circum- 
stances appear when their vast debt to the mother county aud 
the arnutaJ Jjurihen of their civil establishments are added to the 
estimate.' 

"Impressed with the same idea were the same conferrees of 
the upper house in the year 1771. In their messages of the 
20th of November they assert — ' Publick offices were doubtless 
erected for the benefit of the community, and for the same 
purpose are emoluments given to support them.' All taxes 
whatever are supposed to be imposed, and levied for the benefit 
of the community. If then fees are taxes, or such like charges, 
it may be asked, how came parliaments to place such confi- 
dence in the judges, as to suffer them to exercise a power, of 
which those assemblies have always been remarkably tenacious, 
and which is competent to them only? I might answer this 
question by asking another ; how came many. unconstitutional 
powers to be exercised by the crown, and sufiered by parlia- 
ment? for instance, the dispensing power — the answer is 
obvious ; it required the wisdom of ages, and the accumulated 
efforts of patriotism, to bring the constitution to its present 
point of perfection; a thorough reformation could not be 
effected at once ; upon the whole the fabrick is stately, and 
magnificent, yet a perfect symmetry, and correspondence of 
parts is wanting'; in some places, the pile appears to be 
deficient in strength, in others the rude and unpolished taste 
of our Gothic ancestors is discoverable — 

' hodieque manent vestigia ruris. ' 

It does not appear in what instances, upon what oc!casions, 
and in what manner, the judges have allowed fees to their 
officers — that is have permitted them to take fees, not before 
settled by law, usage, or the verdict of a jury. The power if 
conclusive on the subject, and if exercised in the manner 
explained by Antilon, is unjustifiable, and may be placed 
among those contradictions, which formerly subsisted in the 
more imperfect state of our constitution, and of which, some 
few remain even unto this day. How it came to be overlooked 
by parliament, may perhaps be accountecl for somewhat after 



212 FIRST CITIZEN AND ANTILON. 

this manner. The liberties which the English enjoyed under 
their Saxon kings, were wrested from them by the Norman 
conqueror ; that invader intirely changed the ancient constitu- 
tion by introducing a new system of government, new laws, a 
new language and new manners. The contests, which some- 
time after ensued between th^ Plantagenets, and the barons, 
were struggles between monarchy, and aristocracy, not between 
liberty, and prerogative ; the common 2)eople remained in a 
state of the most abject slavery, a prey to both parties, more 
oppressed by a number of petty tyrants, than they probably 
would have been by the uncontrouled power of one. Towards 
the close of the long reign of Henry the 3d., we meet with the 
first faint traces of a house of commons ; that house, which 
in process of time, became the most powerful branch of 
our national assemblies, which gradually rescued the people 
from aristocratical, as well as from regal tyranny, to which we 
owe our present excellent constitution, derived its first existence 
from an usurper. (D) Edward the first has merited the 
appellation of the English Justinian by the great improve- 
ments of the law, and wise institutions made in his reign. 
He renewed, and confirmed the great charter, and passed the 
famous statute, de tallagio non concedendo, against the impo- 
sition of, and levying taxes without consent of parliament. 
Within the meaning of which act, says Coke, are new fees 
annexed to old ofiices. Have any new fees been annexed to 
old offices since that period by the sole authority of the 
judges ? or have they increased the old and established fees ? 
if either, they have certainly acted against law. If Coke 
was of opinion, that the judges had a discretionary power to 
settle the fees of old offices, it is most surprizing he did not 
intimate as much in his comment on this statute, so often 
quoted. He not only ought to have declared his opinion on 
that occasion, but also to have shewn the difference between 
a settlement of fees due to old and constitutional offices, and 
the annexing new fees to old offices. I believe it would have 

(D) Simou Montfoit f^rl of Leicester. Vide 1st. volume parliameutaiy 
history. 



GOVT^IRNOR EDEN's ADMINISTRATION. 213 

puzzled liim, as much as it has Antilon, to shew tlie difference ; 
in realty, there is none, they are but different names for the 
same thing. Although the necessities of Edward, and the 
exigency of the times, forced him to submit to those limitations 
of prerogative, he frequently broke through them ; from whence 
we may conclude, that publick liberty was imperfectly under- 
stood in that rude and unlettered age, and little regarded by a 
prince impatient of restraint, and fond of arbitrary power, 
though inclined to dispense equal justice among his subjects. 
The fatal catastrojjhe of his son, and the causes which occa- 
sioned it, are well known. In those times of discord and dis- 
traction, the greatest enormities were committed by the very 
men, who under a j^retence of reforming abuses, sought to pro- 
mote their own power. 

"Equally unfortunate, and equally unfit for improving the 
constitution, was the reign of Richard the 2d. Hume teaches 
us what idea we ought to form of the English government 
under Edward the 3d — 'Yet, on the whole it a^^pears that the 
government at best was only a barbarous monarchy, not regu- 
lated by anj fixed maxims, nor bounded by any certain undis- 
puted rights, which were in practice regularly observed. The 
king conducted himself by one set of princij)les, the barons by 
another, the commons by a third, the clergy by a fourth ; all 
these systems of government were contrary and incompatible ; 
each of them prevailed according as incidents were favourable 
to it.' 

"This short historical deduction may seem foreign to my 
subject, but it really is not. 

"The frequent and bare faced violations of laws favourable to 
the people, the pardoning offences of the deepest dye, com- 
mitted by men of the first elistinction, or the inability to punish 
the offenders, the corruption and venality of the judges, all 
tend to discover that practices as subversive of liberty, as 
a discretionary power in the judges to impose fees, went 
unnoticed, or remained unredressed. 



214 FIRST CITIZEN AJSID ANTILON. 

"From the deposition of Richard the 2d. to the battle of 
Bosworth, the English were continually involved in wars, 
foreign, or domestic^. Silent inter arma leges. 

" We may presume, during that jDeriod, the courts of justice 
were but little frequented, and the business transacted in them 
inconsiderable; from whence we may infer, that the rules of 
practice, and orders established by the judges in their courts 
being slightly known to the nation at large, escaped the notice 
of parliament, in a time of general poverty, and confusion. 
Frequent insiirrections disturbed the peace of Henry the 7th. 
The first parliament of his reign was chiefly composed of his 
creatures, devoted to the house of Lancaster, and obsequious 
to their sovereign's will. The 2d parliament was so little 
inclined to inquire into abuses of the courts of law, or into 
any other grievances, that the commons took no notice of an 
arbitrary taxation, which the King a little before their meeting, 
had imposed on his subjects. His whole reign was one con- 
tinued scene of rapine and oppression on his part, and of 
servile submission on that of the parliament. 'In vain (says 
Hume) did the people look for protection from the parliament ; 
that assembly was so overawed, that at this very time, during 
the greatest rage of Henry's oppression, the commons chose 
Dudley their speaker, the very man, who was the chief instru- 
ment of his oppressions.' Henry the 8th governed with abso- 
lute sway ; parliaments in that prince's time, were more dis- 
. posed to establish tyranny than to check the exercise of 
unconstitutional powers. (E) During the reigns of Edward 
the 6th, Mary and Elizabeth, these assemblies were busily 
engaged in modelling the national religion to the court 
standard : their obsequiousness in conforming to the religion 
of the prince upon the throne, at a time, when the nation was 
most under religious influence, leaves us no room to exjDect a 
less compliant tem23er in matters of more indifierence. 

" In truth; under the Tudors, parliaments generally acted more 
like the instruments of power, than the guardians of liberty. 

"The wise administration of Elizabeth made her people 
happy; commerce began to flourish, a spirit of industry, and 

(E) An Act was passed in his reign to give proclamations the force of 
laws. 



GOVERNOE EDEN's ADMINISTRATION. ^ 215 

enterprize seized the nation ; it grew wealthy, and Law, the 
usual concomitant of wealth, increased. 

" ' In the 40th year of her reign, a presentment upon oath of 
15 persons for the better reformation of sundry exactions and 
abuses supposed to be committed by the officers, clerks, and 
ministers in the high court of chancery was shewed to the 
committee,' (appointed by the- house of commons in 1739, to 
inquire into the abuses of the courts of law And equity) 'by 
which presentment it plainly appeared, who were the officers 
of the court at that time and what were their legal fees.' Ifc 
appears from the same report, that the officers of the court of 
chancery had exceedingly increased, since the 40tli of Elizabeth 
to that time, by patents and grants, and in consequence, I sup- 
pose of the increased business of the court. It likewise 
appears from the report aforesaid, that commissions had fre- 
quently issued in former times to inquire into the behaviour of 
the officers in the courts of justice, with power to correct 
abuses. The enrolment of two such commissions in the reign 
of James the 1st, and four in the reign of Charles the 1st, 
were produced to the committee, but they certify, that no such 
commission had issued since the reformation. 

"During the reign of Charles the 2d, parliaments were 
sedulously employed in composing the disorders consequent 
on the civil wars, healing the bleeding wounds of the nation, 
and providing remedies against the fresh dangers, with Avhich 
the bigotry and arbitrary temper of the King's brother threat- 
ened the constitution. Since the revolution parliaments have 
relaxed much of their antient severity and discipline. Grati- 
tude to their great deliverer, and a thorough confidence in the 
patriotic princes of the illustrious house of Brunswick have 
banished from the majority of those assemblies, all fears and 
jealousies of an unconstitutional influence in the crown. Par- 
simonious grants of publick money have grown into disuse ; a 
liberality bordering upon profuseness has taken place of a 
rigid and austere (jeconomy ; complacence and compliment have 
succeeded to distrust, and to parliamentary inquiries, into the 
conduct, and to impeachments of raUiKj iniimiers. While 



216 ^ FIRST CITIZEN AND ANTILON. 

parliaments continue to repose tliis unbounded confidence in 
his Majesty's servants, we must not expect to see them very 
solicitous to lessen the jirofits of officers appointed by the 
crown. Political writers in England, have complained bitterly 
of the vast increase of officers, placemen, and pensioners, and 
to that increase have principally ascribed an irresistable 
influence in the crown over those national councils. Will any 
impartial man pretend to say that these complaints are 
altogether groundless ? exaggerated they may be. Let us, my 
countrymen, profit by the errors and vices of the mother 
country ; let us shun the rock, on which there is reason to 
fear, her constitution will be split. 

" The liberty of Englishmen, says an admired writer, can 
never be destroyed but by a corrupt parliament, and a parlia- 
ment will never be corrupt, if government be not supplied with 
the means of corrupting ; among these various means, we may 
justly rank a number of lucrative places in the disposal of the 
crown. (F) 

" A member of the house of commons speaking on this very 
subject, before the house, expressed himself in the following 
manner: 'But the crown having l^y some means or other got 
into its possession the arbitrary disposal of almost all offices 
and places, ministers soon found that the more valuable those 
offices and places were, the more their power would be 
extended ; therefore, the}' resolved to make them lucrative as 
well as honourable, and from that time they have been by 
degrees increasing not only the number of offices and places 
but also the profits and perquisites of each. Not only large 
salaries have been annexed to every place or office under 
government, but many of the officers have been allowed to 
0}ypfess the subject hy the sale of places under them, and Jnj exact- 
ing extravagant and unreasonahle fees, which have been so Jong 
suffered, that they are now looked upon as the legal perquisites 
of the office, nay, in many offices they seem to have got a 
customary right to defraud the publick, and we know^ how 

(F) Edward Southwell, Esq; vide debates of the house of commons 
for the year 1744, anno 18 George 2d. 



GOVERNOR EDEN's ADMINISTRATION. 217 

careful some of our late ministers have been to j^^'evcnt or defeat 
any parliamentary inquiry into the conduct and management of 
any office.'' I am inclined to think that some of our former 
assemblies foresaw the great power, which the offices estab- 
lished in this province for the furtherance of justice, and 
administration of government, would sooner or later throw into 
the hands of the persons invested with those offices ; a little 
foresight might have discovered, that their incomes would 
increase amazingly with the rapid increase of population, 
trade, and law. Aware of the danger they wisely determined 
to provide a timely remedy, and fell upon the true, and only 
expedient, by passing temporary laws for the limitation of 
officers' fees, not by delegating that most important trust to 
judges removeable at pleasure, liable to be swayed, perhaps, 
disposed to overlook the evil practices of their officers, and 
even to countenance 'the new invented and colourable charges of 
combined interest and. ingenuity.' I have mentioned the great 
abuses, which had infected "the courts of justice in England, 
the methods there pursued to correct them, and to prevent the 
exaction of new and illegal fees, and tlie long interruption of 
those methods, or inquiries. 

" The grievance had become so intolerable that the commons 
were at last forced to take cognizance of it themselves ; from 
the necessit}' of their interposition, either a negleet in the 
judges to reform abuses, or a want of power is deducible ; and 
hence this other inference may be drawn, that a law, limiting 
the fees of officers, is the Viest method of preventing their 
encroachments and illegal practices. Notwithstanding the late 
law many abuses had been committed by officers in the manner 
of charging their fees under that law. These abuses, if the 
proclamation should be enforced, will continue and go on 
increasing till they become insupportable to a free people, 
or the people be enslaved by a degenerate and abject submis- 
sion to that arbitrary exertion of prerogative. 

"The necessities of the English kings, which constrained 
them to have frequent recourse to parliamentary aid, first gave 
rise to, then gradually secured, the liberty of the subject. 



218 FIKST CITIZEN AND ANTILON. 

"In this colony, government is almost independent of the 
people. It has nothing to ask but a provision for its officers : 
if it can settle their fees without the interposition of the 
legislature, administration will disdain to owe even that obliga- 
tion to the people. The delegates will soon lose their import- 
ance; government will every day gain some accession of 
strength ; we have no intermediate state to check its progress : 
the upper house, the shadow of an aristocracy, being composed 
of officers dependent on the proprietary and removeable at 
pleasure, will, it is to be feared, be subservient to his pleasure 
and command. 

"I shall now proceed to examine Antilon's answers to my 
former arguments against the power of regulating fees by 
proclamation. 

"The whole force of his first answer, depends on the 
revival of the authority, which he contends existed before the 
enaction of the temporary law ; if that authority is illegal, it 
did not exist, and consequently coiild not revive. The reasons 
already assigned prove the illegality. 

"2d. Answer. 'Parliament may have peculiar motives, &c. 
&c. ' Parliament, it is true, may have many motives for 
settling fees in various instances. To preclude a discretionary 
power in the judges, incompatible with the spirit of our con- 
stitution, and to obviate the inconveniences resulting from 
uncertainty, and to endless litigation, should induce parliament 
to settle the fees in every instance. The notion of the judges 
and the parliament having a co-ordinate power, which might 
clash, was never entertained; from the absurdity of two 
co-equal powers subsisting in the same state, a subordination 
of the judges to parliament was inferred ; but if mercenary 
officers or an artful intriguing minister, by obstructing a legis- 
lative regulation of fees, may leave the power of the judges 
uncontrouled by parliament, and at liberty to act, then do I 
insist, that the authority of parliament to regulate fees may be 
rendered altogether useless and nugatory. 

"3d Answer. 'I might in my turn suppose, etc. etc. ' Thu:s 
may the most insolent, profligate, and contemptible minister, 



GOVERNOR EDEN's ADMINISTRATION. 219 

that ever disgraced a nation, or his prince, suppose ever}^ 
opposition to his measures flows from similar motives. I 
argue not upon supposition, but from facts. The late regula- 
tion of fees was unequal, therefore unjust. A planter paid 20s 
for the same service, which cost the farmer only 10s. 

"To place all the subjects on equal footing was doing equal 
justice to all ; it was bringing back the law to its true spirit 
and original intent. Abuses had crept into practice, owing 
either to design, or to a misconception of the act, or to a 
doubtfulness of expression; among others, fees were often 
charged or services not done ; the delegate attempted to reform 
these abuses, and to lessen the rates where excessive ; in this 
laudable attempt they were disappointed by the obstinacy and 
selfishness of men, who made themselves judges of their own 
merits, and oitm rewards. I agree with Antilon ; ' That our 
constitution may be much improved by altering the condition 
of our judges, by making them independent, and allotting 
them a liberal income' — But I fancy the delegates would 
disagree with him about the means. They perhaps would 
propose to lessen the exorbitant income of an inferior officer, 
who does little to deserve it, who grows more insolent as he 
grows more wealthy, and by a reduction of fees annexed to 
his, and to other offices not attended with much trouble, they 
would probably endeavour to make such savings, as might 
enable them to allow the judges a genteel salary without load- 
ing the people with any considerable additional charge. 

"Another very great improvement might be made in our 
constitution, by excluding all future secretaries, commissaries 
general, and judges of the land office from the upper house; 
until that event takes place we may despair of seeing any use- 
ful laws pass, without some disagreeable tack to them, should 
they clash with their particular interests. Those officers have 
long been connected with the law for the regulation of our 
staple, a law of the most salutary and extensive consequence 
to the community, and which has hitherto been purchased by 
a particular attention to their interests, and a deference to 



•220 FIRST CITIZEN AND ANTILON. 

their demands, as impolitic as unaccountable in tlie represen- 
tatives of a free people. 

" 4tli Answer. A great part of this answer has been already 
obviated. It has been noticed, that the excessive exactions so 
much talked of, and so much dreaded by our merciful minister, 
are mere bugbears. Freemen are not to be terrified with vis- 
ionary fears, over solicitude to protect us from imaginary 
dangers, and a strong inclination discovered at the same time 
to pick our pockets, look a little like mockery. Fees being 
taxes ; to impose them on the subject by proclamation, was as 
illegal as to levy ship-money by proclamation. The design of 
the two measures was nearly the same. 

"Charles wanted to raise money without a parliament, and 
our upstart minister wanted to provide for himself and his 
brother officers without an act of assembly, as the delegates 
would not provide for him, and them, in a manner suitable to 
their wishes. Was not the legality of the ship-money assess- 
ment determinable in the ordinary judicatories ? Did it not 
receive the most solemn sanction '? The sanction of eight 
judges out of twelve '? You still retain, Mr. Antilon, all the 
low evasive cunning of a pettifogger. 

" ' Quo semel est imbuta recens, servabit odorem Testa diu.' 

"oth answer. When fees are not ascertained hj law, the 
verdict of a jury must ascertain them, when thus ascertained — 
the judges in awarding costs are obliged, by statute to include 
them in the costs ; the necessity therefore of fixing the rates of 
fees, either by proclamation, or by the allowance of the judges, 
is a preiended and false necesity ; consequently not unjent and 
invincible. If such a necessity really exists when there is no 
legislative regulation of fees, it was foreseen in 1770, and 
ought to have been guarded against by passing an act of 
assembl}^ for settling the rates. The pretended necessity 
therefore aggravates their crime, who from a mercenary motive 
prevented a regulation by law. The famine, which occasioned 
the embargo, was not a sudden and j^^-culiar necessity ; it was 
apprehended long before it was felt ; ]3arliament might have 



GOVERNOR EDEN's ADMINISTRATION, 221 

beei] assembled, it's advice taken, and a law passed to enable 
liis majesty to lay the embargo. The ministers were blamed 
for not calling the parliament in proper time, and the ii('ri's,siiy 
of acting against law flowing from that neglect, was urged as 
their accusation, not their excuse. Although the question 
'whose fault ivas it that a. legislative regulaHoii did itot take place'' 
— be not determinable in any jurisdiction or by an}^ legal 
authority, yet, has a discerning publick already decided it, 
and has fixed the blame on the proper person. Although he 
cannot be punished by the sentence of any ordinary judicature, 
yet might he be removed from office, on application made to the 
governor by the delegates of the people. Encomiums on the 
disinterestedness of officers, and censures of some obnoxious 
members, in fact, of the whole lower house, come with peculiar 
propriety and decorum from a man, who is an officer, and Avas 
particularly levelled at in the spirited and patriotic resolves of 
that house. It might have given satisfaction to many to have 
had the regulation of the clergy and officers established on the 
terms once proposed by the upper-house ; but this satisfaction 
would not have* resulted from a conviction, that the terms 
offered were just and advantageous to the publick, but from a 
despair of obtaining better ; if this despair should become 
general, the cause of the publick must yield to the interest of 
a few officers. Disgraceful, and afflicting reflection ! Not a 
single instance can be selected from our history of a law 
favourable to liberty obtained from government, but by the 
nnanimous, steady, and spirited conduct of the people. The 
great charter, the several confirmations of it, the jjetition of 
right, the bill of rights, were all the happy effects of force and 
necessity. 

" I am not surprized that Antilon's resentment should be 
directed against a man, who has publicklj- spoke some very 
home truths. The wit and verses borrowed from Horace 
cannot destroy the evidence of facts. I am restrained by the 
limits of this paper from descanting on the merits of tub 
oratory ; it has its use, and abuse, like most other institutions, 
and is not so prejudicial to characters attacked, as the whis- 



222 FIRST CITIZEN AND ANTILON. 

pered Ije, the dark liint, and jesting story told with a sting at 
the end of it. I know a person, who has an admirable knack 
at defamation in this slj, oblique, insinuating manner ; he has 
stabbed many a reputation with all the appearance of festivity 
and good humour : in the midst of gaiety, in the social hours 
of convivial mirth, malice preys inwardly on his soul ; some- 
times he is given to deal in the marvellous, to captivate the 
attention of his admirers — (generally fit tools for him to work 
with) and to leave on their minds a lively impression of his 
own consequence. Surrounded by a group of these creatures, 
he will now and then recount most wonderful wonders ! 
^speciosa miracula,' celebrate his own feats, prowess, and hair 
breadth scapes, in short forge such monstrous improbabili- 
ties, as would shock the faith of the most credulous jew. 

They listening, gape applause. 

"Conticuere omnes, intentique ora tenebant. " 

" Answer (5. Rules or ordinances resj)©cting the practice of 
the courts may be made without any danger of prejudging 
questions of law. 'Judges have been called. upon in council 
to advise their sovereign on questions of law' — true — and in 
consequence of their advice, pernicious measures have been 
frequent!}' pursued by sovereigns — witness, the proclamation 
for levying ship-money, the dispensing power, and others 
equally unconstitutional. These examples should make judges 
very careful how they advise their sovereign ; for bad advice 
they are amenable to parliament, and some of them have 
been punished, for giving extra-judicial and unconstitutional 
opinions. ' Expedit reipublicae ut sit finis litium. ' ' Misera 
est servitus ubi jus est vaguni ' — are sentiments truly liberal 
and useful ; equally so, are these — « free co))sfitutio)i will not 
endure discretioimry i^oivers, but in cases of the most urgent 
necessity. The property of Englishmen is secured by the laios, 
not left to depend on the will of the sovei'eign, or of officers 
appointed by him. There is an impropriety in advising 
measures tending to the immediate benefit of the advisers. 
Self-interest may warp the judgment of the most upright; 
hence, the maxim, 'no man ought to be a judge in his own 



GOVERNOR EDEN's ADMINISTRATION. 223 

cause. ' The advisers of a measure as leijcd and expedient will 
probably remain of tlie same opinion when they come to 
determine on its legalit}' in their judicial capacity. Should 
the question be brought before the court of appeals, ought the 
officers, who are deeply interested in its decision, to sit as 
judges ? If it would be unjust in them to judge of the legality 
of the proclamation, there was surely some impropriety in 
their advifting it. The chancellor in all causes of intricacy is 
advised by an assistant, whose opinion would not, I presume, 
be asked, if interested in the suit. Should a bill be filed 
against the usual assistant, for instance, by a Dutchman, could 
he be so insensible, as not to discover some anxiety at seeing 
his adversary in the capacity of an adviser, directing and guid- 
ing the opinion of the judge? Would not the impropriety 
strike even a Dutchman ? Would he not have great reason to 
suspect an unfavourable decree? Had there been an open 
rupture, a declared enmity, which still subsisted between the 
assistant, and one of the parties to a chancery suit, and not- 
withstanding the assistant should discover an inclination to 
act in his usual capacity, would not his conduct raise indigna- 
tion in every honest mind? Reader make the application. 

"AnsAver 7. 'The governor was not to be directed by the 
votes of the majority of the advisers, they having no authori- 
tative influence ' — on a former occasion we were told — ' there 
can be no difficulty in finding out his (the kings) ministers, the 
governor and council are answerable in this character.' If the 
governor is not to be directed by the advice of his council, 
Why should they be answerable for their advice? He by 
adopting the measures advised makes it Jiis ow)i — because he 
uses his oicn manly judgment, the advice of the council can 
have no authoritative influence over him, and therefore, accord- 
ing to Antilon's latter opinion, contradicted by his former, the 
governor must take the whole blame upon himself. Oh unsus- 
picious Eden ! How long wilt thou sufter thyself to be imposed 
on by this deceiving man? 'The fee for the seals was the 
same in all the proposed regulations ; ' and none of them have 
the least efficacy, wanting the sanction of law. To exact fees 



224 FIRST CITIZEN AJSTD ANTILON. 

under the settlement of the new table, proposed by the lower 
house, would be equally unlawful, though not so dangerous, as 
to exact them under the settlement by proclamation — ' the 
governor receives his fees now'' — and receives them instantly, 
and will not do the service without immediate payment. The 
practice may become general, and the good natured easy people 
of Maryland, will, I dare say — submit to it without reluctance 
or murmuring. 

" Answer 8. Antilon has admitted that he concurred with the 
rest of the council in advising the proclamation as expedient 
and Jt'ijal — he has since justified it — as a necessary unavoidable 
act. It is not the first time that ' expediency has covered itself 
under the appearance of necessity.'' 

"From whence does Antilon infer this necessity? 'The 
judgment, or decree, says he, awarding the costs must neces- 
sarily he, precise'' — but the judgment cannot be ]>j-ccise, unless 
the officers' fees, which constitute part of the costs be settled ; 
if not settled by a law, they must be settled by some other 
authority — and therefore he concludes they must be settled by 
proclamation. — Why not by the verdict of a jury ? Endless 
litigation, it is answered, would ensue from that method of 
settlement. A much greater mischief I reply — would result 
from the other ; charges would be set, and levied on the people 
without, nay, against the consent of their representatives. 
Between two such evils. What choice have we left? The 
choice of the least. Hard indeed is the fate of the province 
to be reduced to such extremity, that some officers may enjoy 
great incomes for doing little. The secretary's office is a mere 
sinecure — yet has he had the assurance to ask a net income of 
^600 sterling per annum to support his dignity. To hear 
Antilon talk in this strain is enough to rouse the indignation 
of apathy itself, but indignation sinks into contempt, the 
moment we reflect on the farcical dignity of the man. 

"Answer 9. The fees settled by proclamation have been 
proved a charge upon the people ; now the setting a charge 
upon the people without the consent of their representatives, 
is a measure striking at the root of all liberty. Antilon has 



GO"VEBNOE EDEN's ADMINI8TKATI0N. 225 

endeavoured to justify the measure by precedents. The pre- 
cedents he has produced do not in the least apply. The set- 
tlements of fees made by the judges appear to have been merely 
authentications of the usual and antient fees. The long disuse 
of inquiries into the conduct of officers gave them an oppor- 
tunity of exacting ueir and iUegal fees ; the grievance was suffered 
to run on so long, that at last it became difficult to distinguish 
the neiv and illegal from the a)itient and legal fees. The fees so 
certified by the judges, were to be deemed antient fees; to 
facilitate their scrutiny — ' juries of olHcers and clerks were 
impanelled to inquire, what fees had been usuall;^ taken by the 
several officers, for the space of 30 years last past,' on a sup- 
position, I presume, that fees, which had been paid for so long 
a time, were probably antient fees. 

"The judges therefore, I conceive, did not settle in that 
instance the rates of fees, Imt certified what were the rates 
heretofore settled. 

" With lis, the rates of fees were not settled : the delegates 
did not request the governor to issue a commission to the 
judges to fix the rates; they remonstrated against the appre- 
hended exercise of the unconstitutional power of settling them 
by his sole authority. I hope it has been proved, that if the 
judges settled, that is, imj)osed fees, not before settled, they 
acted against law and consequently wrong, and therefore, ' if 
what has been done be ivrong, it confers no right to repeat it.* 
To establish which axiom the considerations were cited. I 
have known you, Antilon, long enough to form a true judg- 
ment of your character, and I have exhibited a true picture of 
it to the publick ; an intimacy I have cautiously avoided, as 
dangerous, and disreputable. The frequent repetition of the 
word ' Barber ' in all your papers, makes me suspect some con- 
cealed wit or joke ; perhaps it may be founded on the produc- 
tion of your fertile invention; pray disclose it — I will add it to 
the catalogue ; you understand me. 

"Answer 10. The fees allowed to the petitioning sheriffs by 
an order of council of the 15th of July, 1735 had, it seems. 
15 



226 riKST CITIZEN AND ANTILON. 

been omitted in the proclamation issued 1733, and sucli fees 
only thus omitted as had been settled by any act of assembly 
or established by any former order of council were allowed : 
fees allowed by such orders of council, cannot, perhaps, with 
strictness, be called increased fees, unless the former rates 
were increased, but the reasons already assigned, demonstrate, 
they are rieiu fees. Had these services, to which fees were 
annexed by a subsequent proclamation, been totally omitted in 
all former orders of council and temporary acts, would such 
.allowance of fees have been lawful or not? If lawful, it is 
plain, fees wojild in that case have been increased, being annexed 
to services never before provided for — If unlawful, it should 
seem, that the power, which at the original creation of consti- 
tutional offices, might have annexed a fee to every service then 
enumerated, would be concluded, and might not annex fees to 
services not then enumerated, though actually j)erformed by 
the officers ; so that, whether an officer may lawfully receive a 
fee, does not depend on his doing a service, but on that service 
having been enumerated, and having had a fee annexed to it in 
the first settlement, or table of fees ; but if under a right to 
receive fees co-eval with the institution of constitutional offices, 
the king or his deputies may settle fees, that is, ascertain what 
fees an officer shall take for doing a service, not having a 
settled or known fee annexed to it, then may government 
increase ah libit urn the amount of officers' fees. Ingenuity 
will point out many services performed by old officers, that 
have no settled fees annexed to them, and the right to receive 
such fees being old and constitutional ; the settlement of such, 
cannot according to Antilon's doctrine, be deemed an annexa- 
tion of new fees to old offices. 

"xA.nsw"er 11. 'When the governor in 1692 undertook to 
regulate fees, there was an act of assembly for that purpose.' 
The delegates did not object to the governor's undertaking to 
regulate fees, because they were already regtdated by law. If 
that had been the real cause of the objection they would have 
declared it, to have precluded at once all controversy, but they 
objected upon this general principle — 'that it is the undoubted 



GOVERNOE EDEN's ADMINISTRATION. 227 

right of the freemen of this province, that no officers' fees 
ought to be imposed on them but by the consent of the repre- 
sentatives in assembly '—To which general position the 
(fovernor agreeJ. The delegates produced several acts of par- 
liament to shew, that government could not settle the fees of 
officers by prerogative ; but if they relied on the act of 
assembly then in force, why did they not cite it ? Where was 
the necessity of citing acts of parliament to prove what was 
already most clearly decided in their favour by a positive and 
subsisting law of the province ? — The instances mentioned by 
Antilon of fees settled by proclamation prove only the actual 
exercise of an unlawful prerogative. The dangerous use 
which has so often been made of bad, should caution us 
against the hasty admission of even good precedents, which 
. should always be measured by the principles of the constitu- 
tion, and if found the least at variance, or inconsistent there- 
with, ought to be speedily abolished. ' For millions entertain 
no other idea of the legalify of power, than that it is founded 
on the exercise of power. (G) ' There is nothing saith Swift, 
hath perplexed me more than this doctrine of precedents ; if 
a job is to be done,' (for instance a provision to be made for 
officers) 'and upon searching records, you find it hath been 
done before, there will not want a lawyer (an Antilon) to justify 
the legality of it, by producing his precedents, without ever 
considering the motives and circumstances that first introduced 
them, the necessity, or turbulence, or iniquity of the times, the 
coryivption of ministers, or the arbitrary disposition of the prince 
then reigning.' 

"Answer 12. 'It is not probable the fees of some officers 
will in time exceed the governor's income.' Such an event is 
most probable. The governor's fees as chancellor, fall far 
short of the register's fees for recording the proceedings of 
the court, copies of bills, etc. The register pays his deputy 

(G) Vide Pen. Fiirmer's 11th letter. I recommend an attentive perusal 
of that letter to my countrymen ; it abounds with judicious observations, 
pertinent to the present subject, and expressed with the utmost elegance, 
perspicuity, and strength. 



228 FIRST CITIZEN AND ANTILON. 

40 or £ 50 a year, and pockets fees to the amount of 50,000 
pounds of tobacco, discharged an money at 12s6 per hundred 
pounds. Except the marriage licenses, all the other branches 
of the governor's revenue will probably decrease, or continue 
in their present state. The secretary's and commissary's fees 
must increase with the increase of business, the trouble and 
expence do not increase in proportion. The secretary has no 
trouble ; the expence of this office is a mere trifle compared 
to its profits. 

"Having, at length waded through the argumentative part 
of my adversary's last paper, I am now come to the passages 
more immediately addressed to mj-self; for, Antilon still 
insists that I have assistants, and confederates ; silly, as my 
productions are, he will not allow me the demerit of being 
single in my folly. Formerly I was accused of confidence, 
and self conceit, now I am represented as begging from others, 
the little sense contained in my last piece. 

" Antilon can reconcile contradictions, and expound knotty 
points of law, just as they may suit him. — 

"Veniet hie de plebe togata 

Qui juris nodos, et legum aenigmato solvat. " 
You see. Sir, I take every opportunity of complimenting your 
abilities, somewhat at the expence of your integrity, I confess, 
but not of truth. The observation, that, an unlimited confi- 
dence in a bad minister will be assuredly abused — 'besides the 
merit of being true, ' has this further merit ; the apjjUcation of 
it to Antilon ivasjust. He denies in the most direct terms the 
pernicious influence ascribed to him. The most notorious 
criminals seldomest plead guilty ; the assertions of one, who 
has long ago forfeited all title to veracity, cannot be credited. 
I repeat the questions put to you in my last paper. Was the 
proclamation thought of by the whole council at the same 
instant? Who first advised that measure? Did you not 
privately instigate some member of the board to open the 
scene of action, while you lay lurking behind the curtain, 



GOVERNOR EDEN's ADMINISTRATION. 229 

ready to promote mischief, though unwilling to be thought the 
first mover ? 

"Matters of a public concern are the objects of a publick 
disquisition. When the real advisers of a measure, from the 
secrecy of the transaction, are unknown, we must look to the 
ostensihJe minister ; if the hiown character of the man, should 
perfectly correspond with the imimted conduct, an assurance of 
the truth of the accusation instantly arises in the mind, far 
superior to the evidence grounded solely on his denial of the 
fact, and his most positive asseverations of innocence, or con- 
federated guilt. 'Many members of the council have already 
avoived the part they tooh in the measure'' — and pray what part 
did they take ? that is the very thing we all want to know. If 
they acted only a secondary part, if mislead by your artful 
misrepresentations, and sophistical reasons, they coincided 
with your opinion, not the least degree of blame can be 
imputed to them. 'They have expressed their resentment at 
the indignity of the imputation ' — what imputation ? that they 
were imposed on by 3'our artifices ; Are they the first, will 
they be last, Avhom you have deceived ? If any gentleman of 
the council has taken offence at what I have said, it must be 
owing, either to misapprehension, or to your crafty sugges- 
tions : I meant not to oftend, it would grieve me 

'To make 0})e honest man my foe.' 

You still carp at the maxim, ' The king ccm do no wrong,' or 
rather at the application of it to the governor; the publick, 
and you more than anyone see the propriet}^ of the applica- 
tion ; the governor perhaps, when too late, may be sensible of 
it also, and wish that he had not placed a confidence, which 
he will hereafter discover has been abused, and may possibly 
give him many hoiirs uneasiness. ' The Citizen is a wretch,' 
(says Antilou) 'haunted by envy and malice' — Autilon has been 
already called upon for his proofs ; the truth of the accusation 
rests intirely on his ipse dixit, which is at least presumptive 
evidence, that the accusation is false. Why Antilon am I 
suspected of bearing you malice ? Have 3'ou injured me ? 
Your suspicion implies a consciousness of guilt. What should 



230 FIKST CITIZEN AND ANTILON. 

excite my envy? The splendor of your family, your riches^ 

or your talents ? I envy you none of these ; even your talents 

upon which you value yourself most, and for which only you 

are valued by others, are so tarnished by your meannesses, 

that they always suggest to my mind, the idea of a jewel 

buried in a dunghill. As we agTee in the essential point, that 

the revolution was both just and necessary, it is needless to 

say more on the collateral question, whether the abdication 

followed or preceded that measure ; the dispiite at best, is 

almost as insignificant as that about the words ahdicaied, and 

deserted, which disgraced the house of lords. That the national 

religion was in danger under James the 2d, from his bigotry 

and despotic temper, the dispensing power assumed by him, 

and every other j^art of his conduct clearly evince. 

" The nation had a right to resist, and to secure its civil and 

religious liberties. I am as averse to having a religion 

crammed down peoples' throats, as a proclamation. These are 

my political principles, in which I glory ; principles not hastily 

taken up to serve a turn, but what I have always avowed since 

I became capable of reflection. I bear not the least dislike to 

the church of England, though I am not within her pale, nor 

indeed to any other church ; knaves, and bigots of all sects 

and denominations I hate, and I despise. 

" For modes of faith let zealous bigots fight, 
His can't be wrong, whose life is in the right." 

Pope. 

" ' Papists are distrusted by the laws, and laid under disa- 
bilities ' — They cannot, I know, (ignorant as I am) enjoy any 
place of profit, or trust, while they continue papists ; but da 
these disabilities extend so far, as to ]jreclude them from 
thinking and writing on matters merely of a political nature ? 
Antilon would make a most excellent inquisitor, he has given 
some striking specimens of an arbitrary temper ; the first 
requisite. 

" He will not allow me freedom of thought or speech. The 
resolves of a former assembly against certain religionists have 
been compared to the resolves against the proclamation. I 



GOVERNOR EDEN S ADMINISTRATION. 231 

again repeat, the unprejudiced will discern a wide difference 

between those resolves, and the spirit which occasioned them ; 

it would be no difficult task to shew the disparity, but I choose 

not to meddle with a subject, the discussion of which may 

rekindle extinguished animosities. The contemptible comment 

on the expression — 'We remember and we forgive,' scarcely 

deserves animadversion. 'This,' says Antilon, 'is rather too 

much in the imperial stile.' The Citizen did not deliver his 

sentiment only but likewise the sentiment of others, ive catho- 

licks, who think we were hardly treated on that occasion, ive 

still remember the treatment, though our resentment hath 

intirely subsided. It is not in the least surprizing that a man 

incapable of forming an exalted sentiment, should not really 

comprehend the force and beauty of one. My exposition of 

the document of Minucius, as applied by you, is warranted by 

the whole tenor, and j^urport of your publications. To what 

purpose was the threat thrown out of enforcing the penal 

statutes by proclamation ? Why am I told that my conduct is 

very inconsistent with the situation of one, who ' owes even the 

toleraiio)! he enjoys to the favour of government'?' — If by 

instilling prejudices into the governor, and by every mean and 

wicked artifice you can rouse the popular resentment against 

certain religionists, and thus bring on a persecution of them, 

it will then be known whether the toleration I enjoy, be due to 

the favour of government, or not. That 3'ou have talents 

admirably well adapted to the works of darkness, malice to 

attempt the blackest, and meanness to stoop to the basest, is 

too true. The following lines convey an imperfect idea of 

your character : 

" Him, there they found, 

Squat like a toad, close at the ear of Eve; 
Assaying, by his dev'iish art, to reach 
The organs of her fancy, and with them 
Forge illusions, as he lists." — Milton. 

Impudence carried to a certain degree, excites indignation — 

pushed beyond it, becomes ridiculous. The Citizen's scainlolous 

iiUHreprefientatioii of Petyt is again insisted on. ' The Cifizen 

referred to the jus parliamentarium, he Jctieic the hook ir((f< in 



232 



FIRST CITIZEN AND ANTILON. 



the hands of few.' If in your hands it was sufficient; he 
knew jou exceedingly well inclined to expose his misrepre- 
sentations, ever upon the catch, and ready to lay hold of 
even mistakes and inaccuracies, and when acknowledged, 
still to harj^ upon them. The crude notions of British 
23olity, which Antilon in a former j^aper imputed to the 
Citizen, were quoted as the notions of Montesquieu, enlarged 
upon, and explained by the writer of a pamphlet on the 
privileges of the lower house of assembly in Jamaica ; he 
was apprized thereof in my last paper, and he calls this excul- 
pation a tiny evasion. The notions whether crude or not, were 
not the Citizen's ; but I presume to assert, that so far from 
being crude, they are judicious, and discover a perfect knowl- 
edge of our constitution. 

" ' Hume's history is a studied apology for the Stuarts, 
particularly of Charles the first. ' Has the historian sup- 
pressed any material facts ? If uot, but has given an artificial 
colouring to some, softened others, and suggested plausible 
motives for the conduct of Charles, all this serves to confirm 
the observation, that an account may in the main be true, and 
not intirely impartial; the principal facts may be related, }'et 
the suppression of some attendant circumstance will greatly 
alter their character and complexion. I asserted that the 
constitutien was not so well improved, and so well settled in 
Charles's time, as at present. In answer to this, Antilon 
remarks, that the constitution was clearly settled in the very 
point infringed, by the levy of ship-money. To this I reply, 
that the petition of right was only a confirmation of former 
statutes against the same unconstitutional power, which had 
been assumed by most preceding kings in direct violation of 
those statutes. To tlie imputation 'Tliat you have always fathered 
your mischievous tricks on others ' — you reply — 'roundly asserted, 
but what proof have you?' — sufficient to support the charge^ 
the mask of hypocrisy, which 3'ou have worn so long, is now 
falling off ; the peoples' eyes are at length opened ; they know 
the real author of their grievances ; all his efoiis to regain lost 
popularity will be ineffectual? once distrusted, he will ever 



GOVERNOR EDEN's ADMINISTRATION. 233 

remain so. A particular detail of all your mean and dirty 
tricks would swell this paper (already too long) to the size of 
a volume. I may on some future occasion entertain the 
jiublick with Antilon's cheats. 

"Flebit, & insignis tota cantabitur urbe." 
They would discredit even a Scapin, and therefore must not 
be blended with a question of this serious and general import- 
ance. You have said, ' You do not believe me to he a man of 
Jwnour or veracity.' It gives me singular satisfaction that you 
do not, for a man destitute of 0)ie, must be void of the other, 
and cannot be a judge of either. Your mode of expression, 
which in general is clear and precise, in this instance discovers 
a confusion of ideas, to which you are not often liable ; but 
you have stumbled on a subject of which you have not the 
least conception. 

" Verbaque provisam rem non iuvita sequeutur." 

" If once the mind with clear conceptions glow, 

The willing words in just expressions flow." 

Honour or veracity! Are they then distinct things'? Do you 

imagine that they can exist separately? No, they are most 

intimately connected ; who wants veracity wants principle, 

honour of course, and resembles Antilon." 

First Citizen. 



234 FIRST CITIZEN AND ANTILON. 



CHAPTER 14. 

THE ELECTION. 



1773. The election for members of the Lower House took 
place on May 14tli, 1773. Every county returned delegates 
in opposition to the proclamation of Governor Eden. Annap- 
olis was the one hope of the gubernatorial part}^ The result 
of its effort here was as disastrous to the expectations of the 
"Whigs," as it was farcical to the candidates. The Gazette of 
May 20th tells the quaint story : 

" Last Friday was held the election for this city, when 
Mess. William. Paca and 3Iattluas Hammond were chosen by a 
very great majority of the freemen, indeed, without any opposi- 
tion; much was expected, as Mr. Anthony Stewart had long 
declared himself a candidate for this city, even before a 
vacancy by the resignation on Mr. Hall, whose friends in the 
county insisted upon his taking a poll there. Mr. Stewart's 
private character justly recommended him to the esteem of his 
fellow citizens ; but as he was originally proposed to turn out 
Mr. Hall or Mr. Paca, who stood high in the esteem of the 
people, and as a strong suspicion was entertained of his 
political principles and court connexions, Mr. Haumiond was 
put up in opposition to him, and on the morning of the 
election so great was the majority of voters for Mr. Hammond, 
that Mr. Stewart thought it prudent to decline. 

" The polls being closed and Mess. Paca and Hammond 
declared duly elected it was proposed and universally approved 
of to go in solemn procession to the gallows and to bury under 
it the much detested proclamation. A description of the 
funeral obsequies may not be disagreeable to the j)ublick. 



GOVERNOE EDEN's ADMINISTRATION. 235 

"First were curried two flags with the following labels, on 
one Liberty, on the other No Proclamation. Between the 
flags walked the two representatives: a clerk and sexton pre- 
ceded the coflin ; on the left, the grave-digger carrying a spade 
on his shoulder. The Proclamation was cut out of Antiloiis 
first paper and deposited in the coflin, near which moved 
slowly on two drummers with muffled drums, and two fifers 
playing a dead march : after them were drawn six pieces of 
small cannon, followed by a great concourse of citizens and 
gentlemen from the country who attended this funeral. In this 
order they proceeded to the gallows, to which the coffin was for 
a time suspended, then cut down and buried under a discharge 
of minute guns. On the coffin was the following inscription : 
The Proclamation. 
The child of Folly and OrPRESSioN 
born the 26th of November 1770 
departed this life 
14th of May 1773 
and 
Buried on the same day 

by 

The Freemen of Annapolis. 

"It is wished, that all similar attempts against the rights of 
a free people may meet with equal abhorrence : and that the 
court party convinced by experience of the impotency of their 
interest, may never hereafter disturb the peace of the city by 
their vain and feeble exertions to bear down the free and 
independent citizens. 

The Legislature met at Annapolis June 15, 1773. The 
members of the Lower House were : 

St. Mary's County — Thomas Bond, Richard Barnes, Philip 
Key. 

Kent County — William Ringgold, John Maxwell, Emory 
Sudler. 

Anne Arundel County — Brice Thomas Beale Worthington, 
Thomas Johnson, Jr., Samuel Chase, John Hall. 



236 FIR8T CITIZEN AND ANTILON, 

Calvert County — Alexander Somerville, William Lyles, 
Bichard Parren, Jolin Weems. 

Charles County — Josias Hawkins, Francis Ware, Thomas 
White, Robert Henly Courts. 

Baltimore County — Thomas Cockey Deje, Aquila Hall, 
Charles Ridgely, Walter Tolley, Jr. 

Talbot County — Matthew Tilghman, James Lloyd Cham- 
berlaine, Nicholas Thomas, Edward Lloyd. 

Dorchester County — William Richardson. 

Somerset County — Samuel Wilson, Peter Waters. 

Cecil County — John Veazy, Stephen Hyland, Joseph Gilpin . 

Prince George's County — Robert Tyler, Thomas Contee, 
Joseph Sim, Josias Beail. 

Queen Aiine's County — Turbutt Wright, Solomon Wright, 
John Brown. 

Annapolis City — William Paca, Matthias Hammond. 

Worcester County — Nehemiah Holland, John Purnell Robins, 
William Purnell, Peter Chaille. 

Frederick County — Thomas Sprigg Wootten, Charles Beattj, 
Jonathan Hagar, Henry Griffith.^' 

Mr. Carroll's distinguished services for his State were 
immediately recognized in the hearty thanks of his fellow- 
citizens. The first public manifestation of it, after the elec- 
tions, was in a card, published May 20th, in the Gazette, by 
William Paca and Matthias Hammond, the delegates elected 
to the Lower House, from Annapolis. It was addressed "To 
the First Citizen," it said : 

" Sir — Your manly and spirited opposition to the arbitrary 
attempt of government to establish the fees of office, by 

*The counties and city of Annapolis are placed in the above list by the 
dates, in progressive order, at which they were organized, beginning with 
St. Mary's county, first spoken of as a county in 1688, and ending with 
Frederick county, organized in 1748. In the list of delegates are the 
names of two men — Chase and Paca — Avho were destined to sign, three 
years later, the Declaration of American Independence. 



GOVERNOR EDEN's ADMINISTRATION. 237 

proclamation, justly entitles you to the exalted cliaracter of a 
distinguished advocate for the rights of your country. The 
proclamation, needed only to be thoroughly understood, to b§ 
generally detested, and you have had the happiness to please 
— to instruct — to convince your countrymen. It is the ^JH&ZicZ; 
voice. Sir, that the establishment of fees, by the sole authority 
of prerogative, is an act of usurpation,- — an act of tyranny, 
which, in a land of freedom, cannot, — must not — be endured. 

"The free and independent citizens of Annapolis, the 
metropolis of Maryland, who have lately honored us with the 
public character of representatives, impressed with a just sense 
of the signal service, which you have done your country, 
instructed us, on the day of our election, to return you their 
hearty thanks. Publick gratitude. Sir, for publick services, is 
the patriot's dues : and we are proud to observe the generous 
feelings of our fellow citizens towards an advocate for liberty. 

" With pleasure, we comply with the instructions of our con- 
stituents ; and in their name we publickly thank you for the 
sjiirited exertion of your abilities. 

We are, Sii', most respectfully, 

Your very humble servants, 

William Paca, 
Matthias Hammond. 

Annapolis, May 17th, 1773." 

" To this card, in the Gazette of May 27th, First Citizen 
replied : — 
" To William Paca and Matthias Hammond, esquires. 

"Next to the satisfaction Howing from a consciousness of 
having merited well of one's fellow-citizens, that of meeting 
with their applause may be justly ranked. The distinguishing 
token which the free and independent citizens of Annapolis 
have lately given me of their regard, claims my most grateful 
acknowledgments. Strong indeed must set the tide of liberty 
when even the feeble efforts of an individual in its cause are 
honored with an approbation the best, the greatest men, are 



238" FIKST CITIZEN AND ANTILON. 

even 'most amhitious to deserve, and the highest they can receive.' 
How superior is the praise of freemen to the mercenary and 
interested commendations of a minister — even of a monarch 
*when bestowed to countenance and support oppression and 
injustice! let me entreat you gentlemen to present my most 
hearty and sincere thanks to your constituents, for the public 
and truly honourable approbation they have been pleased to 
express of my endeavours, to warn them against the perfidious 
attempts of a wicked counsellor, grown daring and confident 
from a long and unchecked abuse of power. 

" The sentiments favourable to liberty, which you have dis- 
closed on this and former occasions, evince that the citizens in 
honouring you with the j)ublick character of representatives, 
have made a choice that does equal credit to their spirit and 
discernment. I am with due respect 
Gentlemen, your most 

Obliged, and very humble servant 

The First Citizen." 

The citizens of Anne Arundel, Baltimore and Frederick 
sent thanks to First Citizen for his letters against the Procla- 
mation. 

The poets caught the inspiration of the times and reflected 
the intangible ideas that the combatants in the sterner arena 
of the contest had failed to elucidate. " Broomstick and Quoad," 
in the Gazette of June 10th sings a sinister song about First 
Citizen. 

The poet wrote : — 

* " A new Edition of a late Letter of Thanks to the 
First Citizen. 

" The pains you've been at and the things you have Avrote, 
To tell us our Governor, lies in his throat. 
To prove all his council by Loyola's rules 
{Save one who's a knave) a cluster of fools, 
Entitle you. Sir, to the thrice honour'd name 

*See Citizen's Letter, Gazette, May 20. 



GO^'ERNOIl EDEN's ADMINISTRATION. 239 

Of Maryland-patriot — Huzza to the fame! 

This monstrum horreudura, this da — 'd proclamation, \ 

This subject of many a blustering oration, |- 

You had but to tell us was a kind of iaxatimi ) 

To make us all hate it ; as papists tirst call 

All protestants hereticks, ere they let fall 

Their curses upon them. Thus Sir with deceit 

Well conducted, a la mode des jesuites. 

By the juggle (no more) of a little misnomer 

In a manner quite worthy a son of St. Omer, 

You've found out (how clever ! ) a fair shevvy handle 

T' anathema Old Whig by bell, book and candle. 

Of brass to your fame a fair pillar we'll raise. 

For we've circular letters dispatch'd different ways, 

Which to your nostrils reeking incense shall bring. 

More sweet than ' th' applauses of a heretick king.' 

The GALLANT TiiEKsiTEs hiuiself shall set sail. 

At places, extortion, and courtiers to rail. 

A patriot so pure that his father he'd ruin, 

And work for your sake his children's undoing. 

He'll blush not tho' bearded and branded a lyar, 

To openly swear that a million a year 

Of tobacco one family plunders and pockets. 

Whilst his eye-balls are ready to start from their sockets. 

With pursuasion so strong he'll spue and he'll strain. 

As to turn every stomach, trei)an every brain. 

Like yourself tho' your Avritings xans question all be 
lusiduous, and paltry, yet courtiers agree 
For a patriot they're clever ; and we all to a man 
Bawl aloud in their praise, that they are the plan. 
We're assured that no plot we e'er shall succeed in \ 
'Till we send into exile all men of reading ;- 

And hang up their patron this little God E * * * ) 
This dvine, bid the empire of folly all hail, 
Whilst patriots and jxipists and puppies prevail — 
Our citizens, fully determin'd on sending 
Two members of ironderful great understaiuling. 
Have pitch'd upon us, and soon as they chose us, 
(Instructed we guess by old joke and supposes) 
Commanded us instant to wait upon you 
With two fingers embosoiu'd and our very best bow ; 
With this here oblation, an oUio of thanks, 
Dish'd up at the gallotcs in one of our pranks. 
With pleasure, dread iSir, their behests we obey 
And brimful of gratitude bellow Huzza ! 
Sejanus of old was a letcher accurst 
In blood and in poinon. and s-d— y nurst — 
'Gainst his prince too he plotted, but, his crimes in full bloom. 



240 FIRST CITIZEN AND ANTILON. 

He perish'd and met with his merited doom — 

His" children and friends in one gen'ral carnage 

Involv'd ; no respect to their sex or their age. 

May equal destruction at Antilon's head 

So like this arch felon be instantly sped ! 

May his house fall to ruin, and he by at hook 

Be dragg'd thro' the streets and cast into the dock. 

Go to with this minister Autilon hight ! 
A poor little nwnkey-sJmp'd treason fae'd wight ! 
Whilst you are a comely sweet person and tall, 
"With a world Sir of uiaihTtood and ralour withal. 
"What boots it his writing the considerations? 
"We ask if like you he can damn proclamations? 
What boots it he proves in opinion and practice 
You homo totus ex mendacio factus ! 
Bid him read Escotan,, who says that in writing, 
Such lying's no sin, as all's fair in fighting. 
What boots it that Pitt, fair Liberty's son, 
A friend to his country declar'd Antilon ! 
Let the question we move be referr'd unto 
Our far more sensible and erudite junto, 
Who know that he never such skill in the law had 
As you Sir, so your most humble 

Broomstick and Quoad." 

Another poet came with his song a few weeks later. It 
was entitled : 

"A new edition of the answer to the letter of thanks, 
address'd by the representatives of the city of Annapolis to 
the First Citizen, with notes." 

'• That I've ' merited weir no proof can require; 
For, depend on't, I know, ilfait sefaire ludoir : 
Which, more meo, I'll Ub'rally, translate, 

I'm a damnable, clever, little Barbek, I'll say't : 

Independent — as heir to much compound got riches. 
And manly — as witness the size of my breeches. 

'Next to the pleasure' of vomiting lies. 
And praising myself, there is none I more prize, 
Than tJuinks for my efforts against Proclamations ; 
— Such as Antilon got not for his Considerations. 
A proof what good judges of writing you are ! 
And, for which, with gratitude due, I do swear 
To write for you still ; and, you know who averred, 
That ' such a pen in America never appear'd.' 

*Diou Cass, p. 265. 

tVide Juvenal, Sat. X. L. 66 Vid. Tacit. Annal. quart. 



GOVERNOE EDEN's ADMINISTRATION. 241 



Of folly, 'the tide must set strong,' Indeed; 
When I, little I, the honourable meed 
Of thanks can obtain, for saying no more. 
Than what had been said much better before. 
Be this as it may, my point I have gain'd, 
(An honour 'the highest' I could have obtain'd) 
And well may I triumph, unhop'd, thus to see 
A PROTESTANT people lo tite bend the knee. 

Whilst with thanksgivings I thus can be cramm'd, 

Let Antilon call me an ape, and be d 'd : 

I too can call names, as Antilon fast as, 

And — ' callidus eludere simius hastas.' 

With being Sejauus, or worse will I tax him. 

(And — A'nt I a 'cute, little, dog at a maxim ? 

For instance — I call it a maxim, or rule, 

' That a very wise man is not a very great fool. ') 

Lo, shot up from a hot-bed, and spread all abroad, 

(Of riches and honours how heavy his load ! ) 

Antilon, luxuriant, and fair to be seen. 

Chills, with his shadow us better-horn men. 

Mark well what I say : whilst Antilon stands, 

(For, the rest are but puppets, play'd by his hands, 

Save honest Jack Peachum, Who's as close as a snail, 

And can deal out a hint Avith a bite of his nail.) 

On the clue of each maze his finger he'll lay. 

And, on plots, dark as night, will let in the day; 

When the lawyers are juggling the people to saddle, 

That they, whip and spur, may sit safe a straddle. 

Then on him pour your vengeance ; the speakers are all 

Tou know, on your side — he must — ?ie shall, fall. 

The modest, in silence, must go, as you list. 

For, now, they've no tongue — to tell why they resist: 

H y, long since, disgusted, retir'd, 

In despair of obtaining the ends he desir'd ; 

Nor can H d, again, stand forth to confound, 

By the drum and the fife, his musick you drown'd. 

This business accomplish'd, the church soon shall nod. 
For her, cursed rebel ! in soak I've a rod. 
Whilst you shall protect me, no impious law, 
(Tho' a legion there be) shall keep me in awe. 

When your letter I read, my heart leap'd for joy, 
That I an occasion so apt might employ 
My rancour, and cenom innate to let fly 
At a man I abhor — and, I'll whisper you why. 
I could not be married — (you've heard of the fact) 
Before I had got ' an enabling act.' 
For, a man, you'll allow, wou'd cut a poor figure, 



16 



242 FIRST CITIZEN AND ANTILON. 

(Tho' big as myself, or, perhaps, somewhat bigger) 
Who, to any fair virgin his honour shou'd plight. 

Without being enabled to do what is right. 

In this he oppos'd me ; for which, oh, befal him 

The catholick curse of what do you call him ! 

In yours, I observe much pithy expression, 
As there was in th' account of your funeral procession : 
Which, with your harangues on the ills that befal us. 
As spouted in Cow-pen, and, eke, at the gallows, 
Evince, that our freemen have shewn their discerning, 
By giving us senators, fani'd for their learning. 
Who, I trust, — yet, I fear, — it is too much to hope, 
(Tho' I'd value it more, than the smiles of the pope) 
To shield me, secure, from this Antilon's rod 
Will prevail on the H * * * *, their thanks too to nod. 
Oh, Avatch for a season, when it a good fit is in, 
This point too to gain, for your 

First Citizen." 

On July 2d, 1773, the Lower House passed the following : 
" The Resolves of the Lower House — 

"By the Lower House of Assembly, July 2, 1773. 

" Ordered, That the following be entitled as the resolves of 
this house, viz : — 

" Resolved Unanimously, That the representatives of the 
freemen of this province, have the sole right, with the assent of 
the other part of the legislature, to impose and establish taxes 
or fees and that th© imposing, establishing or collecting any 
taxes or fees on or from the inhabitants of this province, under 
colour or pretence of any proclamation issued by, or in the 
name of the Lord Proprietary, or other authority, is arbitrary, 
unconstitutional and oppressive. 

"Resolved Unanimously, That, in all cases, where no fees 
are established by law for services done by officers, the power 
of ascertaining the quantum of the reward, for such services, is 
constitutionally in a jury upon the action of the party. 

" Resolved Unanimously, That the proclamation issued in the 
name of his Excellency Robert Eden, the Governor, with the 
advice of his Lordship's council of state, on the 26th day of 



GOVERNOK EDEN's ADMINISTRATION. 243 

l^Tovember, 1770, was illegal, arbitrary, unconstitutional, and 
opp7'ess{ve. 

" Eesolved Unanimously, That the paper writing, under the 
great seal of this province, issued in the name of the late 
Lord Proprietary, on the 24th day of November, 1770, for 
the ascertaining the fees and perquisites to be received by the 
registers of the land office, was illegal, arbitrary, unconstitu- 
tional, and oppressive. 

" Resolved Unanimously, That the advisers of the said proc- 
lamations were enemies to the peace, welfare, and happiness of 
this province, and the laws and constitution thereof. 

" Ordered, That the said resolves be printed in the next week's 
Maryland Gazette, and be continued therein, six weeks successively. 
Signed by order, 
^ John Duckett, CI. Lo. Ho." 

To weave the laurels that now encircled the brow of First 
Citizen into the perfect wreath of fame and honor, tradition 
tells us, that the Lower House conferred upon the illustrious 
writer a dignity unique in the annals of a legislative assembly. 
As one [body, the members repaired to the stately mansion of 
Mr. Carroll on the Spa, and thanked him in person for the 
valor and success with which he had defended the rights of the 
people in his controversy with Antilon. 



244 FIRST CITIZEN AND ANTILON. 



CHAPTER 15. 

REVOLUTION FOLLOWS RESISTANCE TO 
USURPATION. 



1773-1776. For almost three years the Province of Mary- 
land was rent with internal dissension over this attempt of the 
Governor to usurp the taxing power in settling the fees of 
the officers of the government and in establishing the rates of 
the clergy. Angry contentions and bitter discussions had 
resounded from one end of the commonwealth to the other, the 
Governor, haughty and determined in his illegal course, the 
people sullen and positive in opposition ; all public transactions 
were filled with a harsh and angry spirit of an unusual 
severity. During the existence of these three years of conten- 
tion, the province was without any public system of tobacco 
inspection. This was a great trial and serious inconvenience 
to the people — as tobacco was the staple article of commerce 
and the chief revenue to the planters who constituted the main 
body of the people. 

Private associations of inspection had been formed to escape 
the rigors of trade produced by the want of a public inspec- 
tion. The general necessities of the people, for a Provincial 
system, opened the way to a compromise between the Governor 
and the Lower House on this particular point, and a general 
inspection law was enacted in 1773, and the Legislature passed, 
immediately afterward, an act regulating the fees of the clergy. 
One element alone of dissension remained — that of the regula- 
tion of the fees of public officers. That the Governor had 
right to regulate them by official proclamation had been the 
main cause of controversy — to this claim the Lower House 
would not yield, and the Governor would not retreat from 
his position. So the Province of Maryland stood bravely at 



GOVEKNOE EDEN's ADMINISTRATION. 245 

its post, resisting the right of any power, save the constitu- 
tional authorities of the Province, to lay any tax, or charge, 
or fees upon them without their consent, until the thunders of 
another and a more formidable revolution, though none the 
less as just and patriotic, were heard at the portals of the 
commonwealth. 

Governor Eden in June, 1774, made a visit to England. 
The position of the people of Maryland, on the new and 
more extensive issue, had already been shown to the Governor 
before his departure. On May 25th, 1774, the people of 
Annapolis had assembled in town meeting, and passed resolu- 
tions reciting " That it is the unanimous opinion of this meet- 
ing, that the town of Boston is now suffering in the common 
cause of America." The spirit of union, breathing in this 
vital resolution, was supported in a statement "that it was 
incumbent on every colony in America to unite in effectual 
measures to obtain a repeal of the late act of parliament, for 
the blocking up of the harbor of Boston." Then the city 
pledged itself to join in an association, throughout the colonies, 
to break off trade with England, and to cease traffic luith any colony 
or province that will not Join the association ! 

Gov. Eden returned to Maryland in November. In the 
meantime, June 22, 1774, the first State Convention prepartory 
of resistance to British encroachments, had been held at 
Annapolis, the intent of the Annapolis resolution of May was 
enforced, and delegates to Congress were appointed, and, on 
October 19th, the Peggy Stewart, with its hateful boxes of tea 
was burned. Then it was, November 8, 1774, that Eddis, the 
English collector of the port of Annapolis, and friend of the 
Governor, wrote : 

"The Governor is returned to a land of trouble." 

That the Governor had an arduous position, the stirring 
events, in progress about him, thoroughly indicate. The 
dignified and circumspect bearing of Eden is faithfully 
depicted by his ardent admirer, the solicitous Eddis, who on 
March 13, 1775, writes : "It is with pleasure I am able to 



246 FIRST CIllZEN AM) ANTILON. 

assert, that a greater degree of moderation appears to predom- 
inate in this province, than in any other on the continent, and 
I am perfectly assured we are very materially indebted for 
this peculiar advantage to the collected and consistent conduct 
of our Governor, whose views aj)pear solely directed to advance 
the interests of the community ; and to preserve, by every 
possible method, the public tranquility." 

On May 13, Mr. Eddis writes : "The Governor continues to 
stand fair with the people of this Province ; our public prints 
declare him to be the only person, in his station, who, in these 
tumultuous times, has given the administration a fair and 
impartial representation of important occurrences ; and I can 
assert, with the strictest regard to truth, that he conducts 
himself in his arduous department, with an invariable attention 
to the interest of his royal master, and the essential Avelfare of 
the province over which he has the honor to preside." 

Governor Eden was in the midst of difficulties that tried 
every measure of his talent and ability. On May 28, 1774, 
three days after the meeting of the citizens of Annapolis to 
express their sympathies with suffering Boston and to concert 
measures for the public defense, William Eddis wrote to 
England saying, " all America is in a flame ! I hear strange 
language every day. The colonists are ripe for any measures 
that will tend to the preservation of what they call their 
natural liberty. I enclose you the resolves of our citizens ; 
they have caught the general contagion. 

"Expresses are flying from province to province. It is the 
universal opinion here, that the mother country cannot sujaport 
a contention with these settlements, if they abide strictly to 
the letter and spirit of their associations." 

Events, portentious in importance to the Governor himself 
personally, now daily occurred around him. The June con- 
vention of the provincial deputies, chosen by the several 
counties of Maryland, reassembled at the city of Annapolis, 
November 21, 1774. The convention adjourned until Friday 
the 25th, when fifty-seven deputies were present. Mathew 



GOVERNOR EDEN'S ADMINISTRATION. 247 

Tilghman, "the patriarch of the province," was chosen chair- 
man. The delegates, from Maryland, at the late continental 
Congress, presented the proceedings of Congress to the con- 
vention. These proceedings were approved by a unanimous 
vote, and the convention went forward with a calm and dignified 
bearing to assume the reins of government and to administer 
the affairs of State. Thus the Governor found himself sud- 
denly, by a bloodless revolution, transferred from the position 
of the chief magistrate of a prosperous province to the modest 
station of a private citizen and to the disagreeable attitude of a 
political prisoner. Yet, amidst the positive measures of the 
brave men who were the head and front of the new revolution 
in Maryland, the Governor was treated with marked considera- 
tion, and when the regulation went forth that all must join 
the association against British importation, and for kindred 
measures of opposition, tlie Governor and his family were the 
single exceptions to the command. 

It was a gloomy day for the Governor and his few loyal 
friends who sought, as Mr. Eddis says, his agreeable company 
where, in the strained and cautious language of this earliest 
letter writer from Annapolis, "political occurrences engrossed 
their conversation in which hope appeared to operate but 
weakly with respect to the transaction of the times." With all 
the show of respect for the governor'^ title and his personal 
popularity, he was only a royal prisoner where he onoe ruled 
with lordly pomp and political authorit}'. All of the Governor's 
letters had to pass the ordeal of examination by the new 
provincial officers appointed by the State convention. Eddis, 
hopeful to the last, writes that the Governor continued " to 
receive every external mark of attention and respect ; while the 
steady propriety of his conduct, in many trying exigencies, 
reflected the utmost credit on his moderation and understand- 
ing." 

The sentiments of the times in Maryland, as early as May 
24th, 1775, were evinced by the passage of these resolutions 
by the State convention : 



248 FIEST CITIZEN AND ANTILON. 

" Kesolved, That we acknowledge King George the Third as 
our lawful sovereign." 

" Resolved, That the formation of militia he continued, and 
suhscriptions for the same he levied hy the several counties." 

Loyalty to the king ! Legions for the people ! Reverence 
and revolution in the same resolution. 

The times were too big with conflict for matters to remain 
in even this partially beatific condition for the Governor. In 
April, 1776, a vessel containing a packet of letters from Lord 
George Germaine, Secretary of State for the American Depart- 
ment, was seized by an armed vessel in the Provincial service. 
In the packet was a letter that acknowledged that Governor 
Eden had sent important information to the government, and 
Eden was assured "of his Majesty's entire approbation of his 
conduct, and was directed to proceed in line of his duty with 
all possible address and activity." 

Gen. Lee, to whom the letter was sent, who had command 
of the Southern district, immediately despatched the letter to 
Maryland, with an urgent recommendation that the Governor 
be seized, together with all the papers and documents of his 
office. Important State secrets, it was thought, would be dis- 
covered. The Council of Safety in Maryland acted with great 
moderation in this critical and delicate, situation. The State 
Convention had promised Gov. Eden his personal safety. The 
Governor, by his moderation, had won universal regard. The 
Whig Club, of Baltimore, almost precipitated matters to a crisis 
by urging that the Governor be arrested, and report went 
abroad in Annapolis that members of that body, — an extra- 
executive and unwarranted organization, — were on the way to 
the capital to seize the Governor's person. The Council of 
Safety discreetly avoided haste and violence, and only required 
the Governor to give his parole that he would not take any 
steps to leave America until after the meeting of the next 
State Convention. The Governor resisted this requisition for 
some time ; but it was unavoidable, and he had to give his 
word. This he did on April 16th. 



GOYERNOR EDEN's ADMINISTRATION. 249 

Straining the critical situation still further, the Continental 
Congress urged, too, the seizure of the Governor. Maryland 
stood by its State's rights and its word, and acquitted itself — 
with the honor that always attaches to public events when 
Marylanders are called upon to act for their country's safety 
or credit. Virginia had Joined in the request of Congress ; but, 
with all these forces accumulated to make the commonwealth 
unfaithful to its promise, the Maryland Convention kept its 
proffered word, and steadfastly refused to break its plighted 
faith to the Governor. 

On the seventh of May 1776, the Maryland Convention 
assembled at Annapolis. On the 23d, it resolved that Gover- 
nor Eden's "longer continuance in the Province, at so critical 
a period, might be prejudicial to the cause in which the colonies 
were unanimously engaged ; and that, therefore, his immediate 
departure for England was absolutely necessary." An address 
was ordered to be prepared and presented to the Governor. 
This was done the next evening by a Committee of the Con- 
vention. The address acknowledged the services rendered by 
the Governor to the country on many former occasions ; and it 
expressed the warmest wishes, that "when the unhappy dis- 
putes which at present prevail, are constitutionally accommo- 
dated, he may speedily return and reassume the reins of 
government." 

In this severe tension in public affairs and during the period 
of serious threatenings of violence to his person. Gov. Eden 
remained self-possessed and relied upon the pledges of the 
Maryland Convention to give him a safe-conduct out of the 
Province. 

On Sunday, June 23d, the British Frigate, Fowey, Captain 
George Montague, arrived to take Gov. Eden to England. The 
first Lieutenant of the ship came ashore under a flag of truce, 
the militia were under arms, and a general confusion prevailed 
in the city on the Severn. "Till the moment of the Governor's 
embarkation," writes Mr. Eddis, "there was every reason to 
apprehend a change of disposition to his prejudice. Some 



250 FIRST CITIZEN AND ANTILON. 

few were even clamorous for his detention. But the Council 
of Safety, who acted under a resolve of the Convention, gen- 
erously ratified the engagements of that body ; and, after they 
had taken an affectionate leave of their late supreme magis- 
trate, he was conducted to the barge with every mark of respect 
due to the elevated station he had so worthily filled. 

"A few minutes before his departure, I received his strict 
injunctions to be steady and cautious in the regulation of my 
conduct and not to abandon my situation, on any consideration, 
until absolutely discharged by an authority, which might, too 
probably, be erected on the ruins of the ancient constitution. 
I promised," says Mr. Eddis, "the most implicit attention to 
his salutary advice ; and rendered my grateful acknowledge- 
ments for the innumerable obligations he had conferred on 
me ; at the same time I offered my most fervent wishes that 
his future happiness might be in full proportion to the integrity 
of his conduct, and the benevolence of his mind. 

"In about an hour the barge reached the Fowey, and the 
Governor was received on board under a discharge of cannon ; 
his baggage and provisions were left on shore, to be forwarded 
in the course of the ensuing day. 

"During the night, some servants, and a soldier belonging 
to the Maryland regiment, found means to escape on board his 
Majesty's ship, which being almost immediately discovered, a 
flag was sent off", with a message to Captain Montague, demand- 
ing the restitution of the men, previous to any further com- 
munication. 

"Captain Montague, in reply, acquainted the councU of 
safety, 'that he could not, consistently with his duty, deliver 
up any persons who, as subjects of his Britannic Majesty, had 
fled to him for refuge and protection ; he had strictly given it 
in charge to such officers as might be sent on shore, not to 
bring off any of the inhabitants without the express permission 
of the ruling powers ; but that the case was extremely different 
respecting those who had, even at hazard of life, given evidence 
of their attachment to the ancient constitution. ' 



GOVEKNOR EDEN's ADMINISTRATION. 251 

" This message not being deemed satisfactory, a letter was 
dispatched to the governor demanding his interference in this 
critical business, with an intimation, that the detention of the 
men would be considered as a manifest breach of the regula- 
tion under which flags of truce are established. 

"Governor Eden received the officer with proper attention, 
but replied, he had only to observe, that on board his Majesty's 
ship, he had not the least authority ; and that Captain Mon- 
tague was not to be influenced by his opinion, as he acted on 
principles which he conceived to be strictly consistent with the 
line of his duty. 

"The event of this negotiation was disagreeable in its 
consequence to the governor. The populace were exceedingly 
irritated, and it was thought expedient not only to prohibit all 
further intercourse with the Fowey, but also to detain the 
Tarious stores which the governor had provided for his voyage 
to Europe. This resolution was intimated in express terms ; 
and, on the evening of the 24th, Captain Montague weighed 
anchor, and stood down the bay, for his station on the coast 
of Virgmia." 

Eight years after this dramatic departure of Governor Eden, 
a man broken in health, yet brave in spirit, came to Annapolis. 
It was Robert Eden. He sought the restitution of his prop- 
erty. A brief period of life remained to him, and, in the 
house now owned by the Sisters of Notre Dame, on Ship- 
wright street, — the mansion made famous by the novelist as 
the home of Richard Carvel — the once lordly Governor of 
Maryland, on September 2d, 1784, of dropsy, superinduced 
by fever, at the age of forty-three jears, died. Under the 
Episcopal Church, in old St. Margaret's Parish, on the North 
Side of Severn, overlooking the site of "ye antient capital" 
of Maryland, where once Robert Eden was its leading citizen 
and chief magistrate, the ashes of the last English Governor 
of the Province were buried. The sacred edifice has since 
perished in sacrificial fires ; but the stone cross, over an 



252 FIRST CITIZEN AND ANTELON. 

unlettered grave, still supports tradition in its legend that 
"here lies buried an English Lord." 

To that man of whom William Pinknej, "the greatest of 
advocates," said : — " Even amongst such men as Eox, Pitt and 
Sheridan, he had not found his superior;" who had been 
America's greatest defender with that weapon mightier than 
the sword in his " Considerations " against English taxation 
in 1765 ; who had given, it is believed, from all the proof at 
hand, the elder Pitt, his arguments in defence of the Colonies 
in Parliament in 1766 ; he, who is named as the projector and 
" Father of American Industries," that man who had never 
abandoned his belief that the English nation had no right to 
tax, without their consent, the American colonies ; was awarded 
the fate of the exile. The Whig Club of Baltimore demanded 
his expulsion from the Province. From Maryland Daniel 
Dulany went to England and his property was confiscated — the 
estates of a man who had never breathed an unfriendly breath 
to America and had never raised his hand in one overt act. 
After the Revolution, Mr. Dulany returned to Maryland, and 
settled in Baltimore. A new order of things had arisen. The 
talents of this distinguished jurist and statesman no more 
flashed from the lofty altitude of public position; for his 
superior ability, in the brisk atmosphere of the young Republic, 
was no longer recognized in official station. Dulany died in 
Baltimore, on March 19, 1797, in the 76th year of his age. 

To "First Citizen," came an illustrious career — a delegate 
to Congress ; a diplomat of the young nation to Canada to 
■enlist the French Catholics in the cause of the colonies ; a 
signer of the Declaration of Independence; United States 
Senator; the revered citizen and honored statesman, he lived 
to be the last of tliose Avho appended their signatures to the 
immortal document that gave birth to the nation, and, in the 
long array of distinguished soldiers, captains, statesmen, advo- 
cates, jurists, and diplomats, that Maryland has given the 
Republic, no name excites warmer glows of State pride and 
national enthusiasm in the " Land of the Sanctuary," than that 
of Charles Carroll, of Carrollton. 



ADVERTISEMENT. 



"First Citizen and Antilon," 

Is for sale at $1.50 per copy, in cloth, by the 

Publisher, Francis O. White, Jr., 

19 State Circle, Annapolis, Maryland. 

Also, by John Murphy Company, 44 West 

Baltimore Street, Baltimore, Maryland. 

And at 70 Fifth Avenue, New York City. 



"Ye Antient Capital, of Maryland." 

By Elihu S. Riley. 70 pages. Illustrated. 

$\ . Francis O. White, Jr., Publisher, 

Annapolis. 



"The ancient City." 

A History of Annapolis. By Elihu S. Riley. 

395 pages. $2. Francis O.White, Jr., 

Publisher, Annapolis, Maryland. 



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